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Evans v. Sutton

Todd Keith’s Testimony on Nursing Care Results in $1.2M Med Mal Verdict


The Expert: Todd Keith, a Nursing Expert, testifies for the plaintiff on his belief the nursing staff fell below the standard of care in their treatment of the patient.


The Verdict: $1.2 million, and a finding that the defendant hospital was 51% responsible, based on the nursing staff’s care

By Dr. Gary F. Gansar, MD, FACS
Senior Physician Medical Director, AMFS

Testifying for the plaintiff in a 2016 Georgia medical malpractice trial, Todd Keith, RN, an expert on nursing, explains why he considers the actions of the emergency room nurse in this case to be clearly beneath the standard of care. The claim was that the ER staff was negligent in their care of the plaintiff, and that breach led to several strokes that left her permanently disabled.

The first issue addressed is the assertion that the ER nurse failed to properly assess the patient’s vital signs. This opinion is based upon a lack of treatment team documentation about this issue. Mr. Keith states that from a nurse’s standpoint, if something was not documented, it is assumed that it was never done. This patient had been noted to be hypertensive by the triage nurse, but there is no written indication that this was checked, assessed, or documented by the ER nurse that was subsequently assigned to the patient.

Testifying to a second claimed breach in the standard of care by the ER nurse, the expert points out that the patient complained to this nurse of a newly acquired headache. There was no documentation of any evaluation in this patient with extreme hypertension, nausea, vomiting and new onset of headache. Instead, the nurse requested pain medication for this new symptom. She did not ask the patient about her history of headaches, when this headache started, the character, the timing, or whether she had experienced any trauma. According to the expert, these failures represent a “gross departure” from the standard of care for an ER nurse under these circumstances.

Finally, Keith reviews the instances of the ER nurse failing to advocate for her patient, as the standard of care for nurses in this situation demands. For example, when a patient with this constellation of symptoms develops a new symptom such as a headache, it is up to the nurse that receives this information to realize that something catastrophic might be happening, and therefore try to get the patient’s doctor to evaluate it, not just prescribe pain medicine over the phone. The standard of care would have demanded that the nurse impress upon the doctor she is speaking to, that she was concerned about the patient’s new symptom developing concurrently with those she already was known to have, and not just accept and allow that doctor to treat the new symptom with morphine.

At times, doctors might be distracted by more pressing problems, or might not have “all the pieces” of the puzzle available to the nurse, that if the doctors were aware, might alert them to the need for an evaluation in person, or that further testing might be useful. It is the nurse’s responsibility to advocate in this way for the patient, since the nurse is the “eyes and ears” of the hospitalized patient, who cannot advocate for themselves. The expert states that these departures from the standard of care were “absolutely” considered to be “gross departures” from the standard.

The jury agreed, judging for the plaintiff and awarding $1.2 million. The hospital was assigned 51% responsibility based upon the nursing staff’s care.

About the Author Dr. Gary F. Gansar, MD, FACS

Gary Gansar, MD, is residency-trained in general surgery. He served as Chief of Surgery and Staff at Elmwood Medical Center and on the Medical Executive Committee at Touro Infirmary and Mercy Hospital in New Orleans, LA. Dr. Gansar was Board Certified in general surgery while in active practice. He joined AMFS in 2015 as a Physician Medical Director.

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