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by Robin Gerber, AARP Bulletin, June 15, 2009
Editor’s Note: Hear Ye! Hear Ye! explores a real court case. Read about it below and decide how you would rule. Then read the actual verdict and let us know if you agree.
One March evening in 1998, Bob Hogue, a strapping 52-year-old, complained to his wife that he felt dizzy and his stomach bothered him. He was afraid he had the flu. It was Friday, and not wanting to miss a business trip on Monday, Hogue went to see a doctor. The doctor diagnosed a mild case of pneumonia, prescribed medication, and told Hogue to come back Monday morning before his trip.
By Monday, Hogue was coughing up pink-tinged phlegm, which could have meant bleeding. “He could hardly walk, and he was clammy,” his wife, Athena, recalled in an interview with Bulletin Today. “I had to help him put his pants on he was so weak.” After an x-ray revealed that Hogue had fluid in his lungs, an ambulance rushed him to the nearest hospital, Columbia Medical Center of Las Colinas, in Irving, Texas.
Sweating and barely breathing, Hogue arrived at Columbia’s emergency entrance just after 9 a.m. He had a blue tint around his mouth, fingernails, hands and feet, which indicated circulatory problems. His heart raced and skipped beats. However, the results from an electrocardiogram (EKG) and blood tests did not show abnormalities. The emergency room doctor put Hogue on a ventilator, sent him to the intensive care unit and called a pulmonary specialist, who found abnormal chest pressures in Hogue’s pulmonary arteries. At 3:35 p.m., after consulting with yet another specialist by telephone, the pulmonary specialist ordered an immediate echocardiogram (images produced by ultrasound, commonly called an “echo”) of Hogue’s heart.
Columbia didn’t perform echo services itself. Instead, the hospital relied on an outside contractor, Cardiovascular On-Call. This wasn’t an unusual practice. “Contractors at hospitals would ensure quality and accountability. That was the original goal,” said Columbia spokesman Owen Dewitt. But because of phone call delays between the hospital and the contractor, the On-Call technician didn’t arrive until 6 p.m. He abruptly ended the ultrasound at 6:30 p.m. when he saw that the mitral valve in Hogue’s heart was rapidly leaking blood. Hogue needed emergency surgery, which meant a transfer to Baylor Irving Hospital because Columbia wasn’t equipped for cardiac surgery (it is now).
But too much time had passed. Just after arriving at Baylor Irving, Hogue died.
Hogue’s family sued Columbia Medical Center for negligence. A jury found the hospital guilty of negligence and awarded the family more than $9 million in actual damages. Centering its verdict on the failure to provide a timely echocardiogram, the jury also found the hospital “grossly negligent,” meaning that Columbia had created an extreme risk that Hogue would be harmed. The gross negligence finding also meant that the jury had concluded the hospital was aware of the risk to Hogue and had acted with conscious indifference to his welfare. Based on that finding, the jury ordered the hospital to pay an additional $21 million in punitive damages, but the judge capped that amount at $3.4 million.
The hospital protests
The hospital took the case to the state Court of Appeals, which capped the actual damages at $1.5 million and affirmed the trial judge’s $3.4 million cap on the punitive damages. The hospital accepted responsibility for the negligence ruling, but in an appeal to the Texas Supreme Court, it challenged the finding of gross negligence and the punitive damages award.
Columbia argued that the law didn’t require hospitals to provide all services to all patients. Its expert witness testified that hospitals do not have to provide echocardiograms or guarantee them within a certain period of time. Because it is located in an area of young families, Columbia did not anticipate many cardiac cases. Nevertheless, Columbia said it satisfied its responsibility to patients by arranging for On-Call to provide the echo service.
Columbia had the option to pay for urgent echo service but chose not to do so. The Hogue family’s expert witness testified that outsourced patient services should have “specific guidelines in terms of how quickly [the contractor] will … provide that service.” Also, Columbia’s medical staff wasn’t aware of the On-Call contract terms. The doctor who had ordered Hogue’s echo “stat”—or pronto—did not realize that the hospital was not capable of following his request.
It’s your turn! If you were a judge, how would you rule?
Robin Gerber is a lawyer and the author of Barbie and Ruth: The Story of the World’s Most Famous Doll and the Woman Who Created Her.
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