Hospitals’ Liability in Neonatal Cases

Neonates receive their treatment almost exclusively in the hospital. Rarely, initial treatment occurs at home (home delivery could be planned or unplanned), birth center, or ambulance. Doctors who treat newborns in hospitals must rely on hospital administrators to provide appropriate nursing staff levels, pharmacists, medicines, and equipment.

Only with the whole hospital organization working in sync can it be possible to deliver high-quality care to patients, particularly those in intensive care units.

Almost always, when litigation is started, in addition to doctors, the hospital is involved. Often, the hospital is not at fault, but in other cases, it fails to provide the conditions for delivering high-quality patient care (source article).

In the exhaustive list below, I will describe many instances in which one can justifiably find the hospital at fault for bad outcomes in its newborn patients receiving NICU treatment.

Lack of appropriate staffing

I do not have to explain that to take care of the baby in the NICU, I need to have enough available nurses, respiratory therapists, cleaners, and many other medical providers. Suppose I have an acute case of pneumothorax in a baby, and I cannot obtain a chest X-ray on time due to an inadequate number of radiology technicians on site. In that case, the hospital should be held liable for any adverse outcomes in a patient due to delayed diagnosis or treatment of this acute and life-threatening condition.

Many administrators, department directors, or charge nurses got used to the nursing staff shortages. However, it has been shown in many studies that the ratio of nurses to patients in intensive care units impacts the quality of care and even mortality rates (source article).

Studies have proved that overworked regular nurses or hired agency moonlighting nurses tend to make more mistakes.

I have heard of numerous hospitals where nursing staff shortages persist for months. In all these cases, I blame administrators. Not all hospitals deal with staffing problems. People will want to work there if an institution provides better working conditions, pay, and training.

Administrators have to take staffing shortages more seriously. Once in my career, I was in a situation where one NICU nurse cared for six newborns. Two babies were sick and needed to be transferred to another institution. Instead of being horrified by this occurrence, the administrator was self-congratulating and praising the nurse who handled the situation.

I believe the department director and nursing officer should have been fired for allowing such dangerous working conditions in the NICU. In the intensive care unit for babies, any mistake can impact our tiny patients’ lives and future development.

It is challenging to infer staffing levels only from the medical notes; however, sometimes, if one knows what to look for, it can be guessed.

For example, the nurse states in her note: “called radiology at 10 PM to request an urgent chest X-ray,” then later, “called radiology again at 10:20 PM,” and again, “called radiology at 10:30 PM.” In such a case, we should question all medical providers during the deposition whether there was any delay in obtaining the X-ray and why.

Another frequent situation I encountered during my career, particularly in NICU level 2, is the need for pharmacists on night shifts. Many hospitals do not staff them at night. Some life-saving medications for IV infusions used in neonatology require special preparation. In my opinion, a delay in obtaining Dopamine, Dobutamine, Immunoglobulin, or Prostaglandin is inexcusable.

The above examples should reinforce the need to question during each deposition staffing level in NICUs, their education, experience, and skills.

Lack of medicines

It is expected that periodically certain medications are in short supply. Pharmaceutical companies may run out of components or be unable to meet the demand. Whenever that happens, hospital pharmacists should seek replacement medications and ensure that all physicians and nurses are aware of the problem and comfortable with proposed solutions.

On the other hand, due to negligence, the hospital sometimes fails to stock life-saving medication for newborns or have it in stock but is unaware that the medication has expired.

Again, it is inexcusable if a hospital provides services to newborns but does not have Prostaglandin, a medication urgently needed whenever a baby is suspected of having congenital cyanotic heart disease.

In my career, I have seen multiple situations where a hospital did not have the needed medication on site.

While reviewing a newborn’s chart, the reviewer should always pay particular attention to the timing of when the medication was ordered and when it was actually given to the patient.

Lack of equipment

While caring for the newborn baby in the NICU, we use many different pieces of equipment. I can refer you to my article for a detailed description. Here, I will only mention examples. We need central catheters, breathing tubes, phototherapy lamps, breathing machines, oxygen supply, and many others.

Due to a lack of supervision, training, or regular maintenance, especially in units with low volumes of sick babies, I encountered numerous situations where equipment was lacking or malfunctioning.

Sometimes, we can guess from medical notes written by doctors and nurses that there was a problem with the equipment. However, we should always ask questions about this subject while interviewing involved individuals.

Not having appropriate backup electric power

It is common knowledge that hospitals must have backup electric power in case of a power outage. Unfortunately, we all heard about issues with that.

Many pieces of equipment in the NICU have built-in backup batteries, but most will last only 1-2 hours. Therefore, a hospital needs to ensure that it has on-site generators capable of providing electricity to care for patients safely.

Outdated policies or lack thereof

Many medical problems occurring in newborn babies are complex. To streamline care, hospital providers develop algorithms or pathways that help us decide what to do.

There are some potential problems with policies in NICU:

Who is going to write a policy
It should be up to date with current knowledge
Medical providers need to learn about a new policy
Doctors and nurses need to follow policies
How do we document what we do according to a policy
Who ensures that the procedure described in a policy is followed

Examples of policies that most NICUs will have:

Management of hypoglycemia (low sugar levels in a baby)
Management of newborn baby with suspected sepsis (infection)
Management of newborn with jaundice (yellow skin)
Many others

It may be necessary for a neonatal chart reviewer to request specific policies that apply to a given case. In addition, I advise the plaintiff’s lawyer to inquire from the involved individuals whether any diagnostic or treatment decision could fall under the existing hospital policies.

Failure of information systems or lack of education about them

All US hospitals use information systems and computers in their work. Therefore, having them updated, secure, and resistant to hacking is essential. Inoperational electronic medical records may cause significant delays or errors in diagnosis and treatment (source article).

I devoted a separate article to the hacking of hospital computer systems and subsequent dangers to patients receiving their treatment in neonatal intensive care units.

Administrators must be responsible and accountable for training all workforce, including moonlighting staff, on using hospital information systems. Such training should always encompass verification of skills before any patient contact can be allowed.

Unsecured entry and exit from the NICU or Nursery

A few cases have been described in the news involving unauthorized persons entering the nursery and kidnapping a baby.

In addition, it is also conceivable that if sloppy security protocols exist, dangerous individuals may enter the hospital and harm employees or patients.

Flawed methods for labeling breast milk or medicines

Nurses, doctors, and pharmacists care for many patients during their shifts. Therefore, it is vital to ensure they order and administer medications to the right patient.

There are numerous systems in place to help us with doing that. We have bracelets on patients; we use witnesses to double-check the identity of patients whenever potentially dangerous medication is to be given; we scan barcodes on medication; and finally, the nurse can call a doctor or pharmacist to check the correctness of the order.

Medication error

Despite all our efforts, medication errors still occur in hospitals and NICUs (my article on medication errors and associations with neonatal malpractice cases).

Types of medication errors:

Wrong medicine: The patient was given a different medication from the one that was ordered or intended
Wrong patient: the treatment was given to the wrong patient
Wrong dose: the patient received a different amount of the medicine from the one that was ordered
Wrong route: For example, the drug was for intravenous administration, but it was given orally

In my work as a reviewer of neonatal cases, I always include an analysis of the appropriateness of medical treatment and confirm doses of all ordered medications.

In conclusion:

Although a hospital is not always liable in malpractice lawsuits, it is commonly found during the discovery process that many factors in hospital administrators’ control contribute to bad outcomes.