Healthcare News & Insights

Two docs pay for child’s death — but who actually made fatal mistake?

No one knows how — or when — a piece of metal ended up in the brain of a four-year-old. But two doctors at Children’s Hospital Boston were just found responsible as part of a $15 million verdict.

The verdict is unusually large for one in which the patient died (and therefore won’t require costly long-term care). But the scarier detail for health care providers is that no one is quite sure which hospital caused the fatal injury.

The boy’s treatment was one of a long line of surgeries to correct a birth defect. The child, Jason Fox, had serious complications from Tetralogy of Fallot, which was preventing his organs and limbs from getting sufficient oxygen.

He had previously undergone open heart surgery and seven cardiac catherizations — all of them at Children’s Hospital of Philadelphia. When his condition didn’t improve, he was referred to CH Boston for further surgery to widen his pulmonary arteries.

Hours after the procedure, the child suffered a seizure. Follow-up tests showed that contrast dye used in the procedure and a small piece of metal (most likely from a medical device) had found their way into his brain. No one could say for certain when (or at which hospital) the metal had broken free.

Jason left the hospital unable to speak or walk, and died six months later.

His parents sued CH Boston, saying that doctors treating him had lied about their actions and withheld information about the treatment given to the child.  The jury apparently agreed, awarding the family $5 million for Jason’s pain and suffering, $5 million for wrongful death and another $5 million for the loss of their child.

The final award will be somewhat smaller, due to a pre-verdict agreement the parties brokered.

CH Boston stands behind its doctors, saying they provided good care to a child who was already in precarious health due to a congenital defect and several prior unsuccessful procedures. The doctors in question — including the hospital’s former physician-in-chief — were experienced physicians with good track records.

Was the verdict fair? Or was this another case of aggressive treatment having unforeseen consequences? Share your thoughts in the comments.

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  2. Emmett Jones says:

    Unfortunately, our society has reached a point where the belief is that someone HAS to pay for anything that happens that we neither wanted nor expected. Instead of mourning the loss of their child, the parents wanted to punish someone, whether they were responsible for the death or not. Vengence, not justice prevailed here. At least, I hope that it’s a desire for vengence rather than money that prompted the suit. It’s likely that no one did anything wrong and an absolute certainty that no one did anything deliberately. Accidents happen and parts break; accept that we live in a broken world, forgive others and mourn your child. That is really all that we should decently do.

  3. I’m not a medical professional but I’m a realist. Every complex surgery has its risks, and the boy’s family surely was made aware of them. The fact that a piece of metal stayed in his body is tragic but is part of the risk of care. It had to be a tiny piece of metal that somehow broke off or came loose; it’s not as if a clamp or tool was carelessly left inside. Surgeons and their teams are held to a higher standard, but it can’t be 100% error-free…that’s perfection, and it’s rarely attainable.

  4. It is unfortunate that the baby died and the family had to suffer along with the child. But what is being done to make sure that this does not happen to someone in the future. Especially when it is unclear where it really happen at.

  5. One of the main problems I see is that when these type of events happen, it forces doctors to NOT want to even try risky procedures. How would this family have felt if they were denied from every doctor they talked to that there were not willing to work on this boy because he was too risky of a case?

    This may well be what is happening now and will only continue to happen if surgeons feel like the chances are high that an incident such as this can occur. So in the long run, these types of lawsuits end up hurting future high risk patients.

  6. Re Emmett Jones’ 1/20/10 11:26 post: Well said, Emmett.

  7. Paul Chuba MD says:

    This is a travesty. What happened to innocent until proven guilty? The concept of res ipsa loquitur (the thing speaks for itself) does not apply because nobody knows what the piece of metal was.

    Simple way to find out. Do an autopsy. 15 million dollars????

  8. As a doctor, there are inherent risks with any treatment, drug or surgery. It is the burden of the doctor to advise the patient of the all risk and or other possible treatment options. That being said in this case, the proof of what happened seems vague. Where and what as the metal from? Obvious is was from one of the child surgery’s, but what exactly. Also, if the parents, irregardless of the child’s state of health, were not advised of the procedure and the risks involved and were not allowed to make an informed decision, then the fault is with the doctors.

  9. The surgery was not on the brain. It’s obvious the piece of metal went to the brain via the vascular system. Is this mistake a mistake by the physician or a hospital staff member? Where was this small piece of metal, could it have been in the container of dye, could it be a small piece of the multiple needles this child had throughout the lengthy stays in the hospital. I disagree…the physicians need to depend on the staff at the hospital to implement quality assurance, they can’t be held responsible for all the possible enounters caused by packaging, nursing staff etc.

  10. A physician who can rearrange your brain and have you walk out of the hospital one week later is a marvel. They once were compensated the highest and rewarded for that knowledge in our united states. And they are sued for the highest amounts in financial history. The professional athlete is now one of the highest paid in the land and he/she can win and lose games and be compensated the same and never be penalized for all the gambling debt and merchandise profit loss. Somehow entertainment and the media have superceded in salary and importance the life and death performance of a surgeon, however the surgeon is taking the biggest of hits.

    The world attitude is in the toilet – the need to get what you want no matter the cost to other people, the need to get your face in the paper or on the news no matter the cost to oter people, and the need to be first no matter the cost to other people. The golden rule is: Do unto others as you have done unto you. How bad would the couple of this child feel if a friend’s child had died on their watch in their car accident or at their home or during their daily activities while visiting? How would they feel if their best of intentions turned into such an event that the parents of that child sued them for all they were worth? There are papers signed prior to any procedure stating the risks of mortality and possible injury – where was the legality of that paperwork in this decision by jury? I believe this to be a wrongful conviction. The message of it will circle the bowl just as well as all the other degrading mentality of society.

  11. What happened to “informed consent” with the surgery, & how did the court decide that the surgeon, (who’s sole purpose was to try to treat/heal this poor baby), is the responsible party? The bottom line is that we should be grateful for the wisdom, knowledge & expertise of our physicians, & stop suing for everything under the sun. Yes, there are wrongful deaths that happen out there. I just don’t believe that this fits that profile. How many healthcare professionals had contact with this child? Do you sue every one of them, or do you thank them for the expert care they gave to your loved one?

  12. Physicians and nurses endevor to be perfect at all times, under systems and processes with tools and outcomes that will never be perfect. They inevitebly fail at some point. Subsequently they are both punished and villanized?

    15 million…

    When is the last time you heard of the teen driving while on the cell phone who hits someone crossing the street, and maiming or killing them, being forced to pay 15 million.? No, doesnt happen much as it was merely an accident.

    The practice of medicine is an art and science applied to a stochastic environment of complex systems. It will never be perfect.

  13. Anastasia says:

    I agree with most of the opinions stated. The other losers in cases like this are American consumers. Healthcare providers are forced in to a CYA position. They prescribe unnecessary medicine, unnecessary tests and procedures just in case something goes awry. The American consumer pays higher medical bills and higher insurance premiums. And, in this environment, who would want to take the time and spend the money to become a doctor? Yes, mistakes can be made. But, as others have stated here, the doctors and hospital made a good faith effort to reduce this child’s suffering. They should not be punished because of an unforeseen event. Come on people!

  14. David E. Harrison says:

    The size of the award is insane, as this was an unavoidable accident.
    If the prosecution could not even identify the culprit, how could anyone be punished?
    This misuse of the law will no doubt be a lead example as to why lawsuits should be limited.

    Unfortunately then physicians who actually are at fault may be protected.

  15. Vidhya Sivakumar says:

    Actions such as these law suits are the root cause for the disaster the US health care is in.

    The death of the child is simply TRAGIC – no arguments. The actions of the parents to sue – simply driven by GREED and VENGEANCE.
    The background of the poor child – long line of hospital stays & procedures, birth defect, no improvement in his condition; no hopes of ever leading a normal life; the parents pursue doctors and hospitals for some relief to the child; the doctors and hospital staff respond until tragedy strikes.
    And then what – wham! the very same doctors & staff become the target to get compensation out of – by hook or by crook.
    Our legal system aids and abets this approach of always readily blaming doctors, hospitals, pharmaceutical companies for anything, just anything that goes wrong.
    The cascading effects – rising insurance costs, rising healthcare costs, sub-optimal treatment due to doctors not willing to take any risks or think outside the box….and so on….
    It is pathetic that people such as the parents in the story a) are allowed to sue, b) the case gets decided quickly with scant regard for objective evidence and c) get more money than thay would have ever seen in a lifetime. What a shame!

  16. I must say – US system has being known to always find laywers to sue for anything and everything. That’s why the country is in bankcrupcy.

    I have a very high respect for the doctors that are out there trying to help – and I agree that with every operations, a consent form is signed and that “they” accept the risks.

  17. It is too bad this won’t go to the Supreme Court. Despite the jury trial I can’t imagine that the Doctors and the Hospitals would stand by and be lambasted by this process. I can certainly understand some compensation for the treatment and care but $15 million is excessive. However, in the short run nobody really cares about the $15 million.

    I can understand feeling the need to make someone “pay” for the death of my child; I know that I would be devastated by the death of my son. However, it is best to grieve and continue on living. $15 million can’t bring back their son any more than it can turn back time to prevent the accident from occurring.

    Maybe a lawsuit like this would help prevent accidents in the future if this were negligence, but where is the negligence? Should this boy have been subjected to a MRI, X-RAY or a CAT scan after every surgery or injection to make sure that everything looked ok? If that were true than everyone who goes in for a headache or a runny nose should be subjected to every test in the book less they succumb to some terminal illness in which the healthcare industry is slapped with another outrageous lawsuit.

    Honestly, if I were to have as many tests done as possible at a yearly physical or doctors visit I would be ecstatic. It would cost a fortune and take an ungodly amount of time and resources, but I’d have a pretty good picture of what was going on in my body – to a certain extent. Even with all the scans in the world there are still incidents where something is missed or something just can’t be caught. Part of that is human error, some of that is limitations of the equipment. Should a practitioner or healthcare group be penalized for failing to have technology that doesn’t exist or only having the second best radiological tech in the world?

    Let me just say that we can’t just give up when we’re dealt a bad hand in life. If someone is born with a debilitating disease it should never be expected that they should just live with their situation no matter their stature in society. If treatment is available or a cure is possible than that person should have the opportunity to exercise the resources available to bring about a positive outcome. Do I wish that every possible means could be exacted to do this? Absolutely. Is it possible? Unfortunately not in every case. There are more reasons than I could possibly contemplate as to why this is true and almost all of them are unacceptable. The truly ironic thing is that we have to accept them.

    Unfortunately this expense was probably covered by the hospitals insurance company, which in turn the insurance company will be more than happy to raise it’s premiums and rates to all of its customers. In essence costing everyone more money. It is sad that it is likely the $15 Million will evaporate faster than alcohol on a swab.

    This whole incident had more than two parties involved and blame could be distributed in an infinite number of ways. I’ve rambled on enough to subject anyone to hypothetical blame games. One thing is certain that the hospitals do deserve to belong among the list of parties that should accept blame for the incident. While it may have been unlikely, it is possible that this could have been prevented. However, the Parents must have had some understanding of the risk they were subjecting their son to and therefore can’t possibly deserve that level of compensation. That’s my $.02 (plus a $1.50).

  18. Vidhya, I think you summed up the majority of comments perfectly. Well stated.

  19. I second Emmett’s post. Very well said!

  20. A.Cornell says:

    Working in a medical field and being present when a dr. explains “risks vs. benefits” and discusses the “informed consent”, I get angry over the lawsuits that are awarded when there is no clear negligence or malpractice. Sounds like the doctors all did their best and something no one can explained happened. No doctor can begin to mention EVERY POSSIBLE complication that can happen in any procedure. When working on people, all very unique and individual, there are always risks, always possible complications. Sad that people can always find a lawyer somewhere who will take any case… sadder still that there are judges who allow them to proceed and juries who agree.

  21. I agree with many of the comments above and this is indeed a tragic case. To me, this is yet another example of how science and courtrooms don’t mix well. Many jurors are unable to fully grasp the complexities of science/medicine and may be overtaken with emotions (it is certainly sad that this child died). At the same time, I have to wonder if the proper intervention of compassion and transparency on the part of the hospital/staff might have mitigated this situation, despite the sad outcome. Many other tragedies transpire in hospitals that thankfully never make it to the courtroom.

  22. If there was going to be this type of lawsuit, there should have been an autopsy performed and the piece of metal retrieved for inspection to determine what it was. Don’t think it could not have been determined exactly what it was, there is too much technology out there to not be able to confirm exactly where this piece of metal came from. The lawsuit, if there should have been any, should have been against the manufacturer of the tool or whatever that is said to have broken off. Out of all these posts, why hasn’t any one else though of this?

  23. It is amazing that we can still find individuals who want to still practice in today’s litigation society. The smartest ones are those who choose another profession & stay out of medicine. When there are no longer healthcare providers available will we then wise up to how selfish these lawsuits are? Maybe when a lawyer needs a doc & there is no around we will get it! Were all the maker of all instruments from all hospitals sued as well, why not? May they not be at fault? This is just not right & the jury should be ashamed that they decided the way the did.

  24. First of all, the condition is Tetralogy of Fallot. And yes, I totally agree with Vidhya. It is awards like these that are causing Healthcare Reform (what a joke)! You think 15 million is crazy, just wait and see what rolls out of Washington for all of us to endure! I wonder what the parents of this poor child are doing with their $15 million. Probably spending it on means of preventing it from happening to another child……unfortunately, I bet not. It is actions like these that are turning intelligent, caring, humanistic people away from the medical profession, across all disciplines. The entire event is both tragic and shameful. I feel truly sorry for everyone involved but find comfort knowing the child is finally at peace.

  25. Opportunistic lawyers can foment the greed of potential plaintifs who, if they were not directily involved in this case, would otherwise conclude that the award was outragous. Jurys can likewise be manipulated. This is a cultural problem steming from a lack of gratitute for the blessings we have, for the work and talents of others, and relativistic thinking that can justify anything. The greed factor eventually becomes the driver, while the parties insist, “it’s not about the money”.

  26. Many intelligent replies point out the tragedy of this very sick child, and since I have lost a child, I know the pain of the parents. But I seriously doubt that this was negligence. The only eventual consequence of this verdict and many like it will be reluctance on the part of good doctors to take these risky patients. I remember a directive from an un-named nationally known clinic to do just that. The other possibility is that the Federal government will take over all healthcare, and it will be illegal to sue or there will be an arbitrary cap. The medical liability system is broken. It is time to acknowledge it.

  27. Davene Yankle says:

    Once again a lawsuit takes precedent over common sense. An obscene amount of money is awarded and the future of affordable and expert healthcare is compromised. I am saddened for the parents, ashamed of the laywers and government judicial system for their lack of common sense (again) and hope that the medical staff really did give 110 percent to the care of that child and will continue to do so for others in need. Nothing was gained in awarding the 15M they would do better to donate it to research for the condition they were trying to treat in the name of that poorunfortunate child.

  28. I agree that in this case the rush to judgement was driven by both grief (by the parents) and greed (by the lawyers, of course). Seems clear that a piece of metal “broke off” some instrument during an invasive procedure. I’m curious as to why the medical device manufactures weren’t held accountable too? They got off scott-free. All medical device products must pass quality testing, including the machinery making the device. The article doesn’t say whether the piece of metal was put through any kind of testing to determine what device it could have come from. Unless that was determined, I believe all invasive medical device manufacturers should have been sued as well. Heck, the product could have been mishandled by the delivery company, by the supply distribution staff… too many variables – sadly, it’s the physicians that are targeted in lawsuits. They’re only using what the hospital provides.

    The lawyers for the plaintiff must have made a very compelling emotional argument – certainly pulled on the jury’s heart strings, thus the exagerated judgement.

  29. As a physician who treats very complex and sick children and adults, I have to say that at some point in the informed consent process I have to resort to saying something like “and bad things can happen that are unforseen. These may result in a need for further intervention, possibly by surgery.” It is impossible to catalog every possible bad thing that can happen during a procedure. You, as the patient, would not want to sit there and listen to the list even if I had one.

    In this instance, huge amounts of time, money and personal attention had already been paid to trying to keep a child with a technically “lethal” birth defect alive. Some times we win and sometimes we don’t. We all feel very bad when bad things happen. People die because we cannot fix every problem. To think that the death of every patient that I am involved in treating doesn’t affect me would be inhuman. Life is not fair and physicians are affected by this fact on a daily basis. I am really sorry that this child died. That “piece of metal” came from somewhere. There is no easy way to find out how and where so to penalize Children’s Hospital is unfair. If the parents’ goal was to find out what happened and help to prevent it in the future, well, that doesn’t cost $15 million. The goal of this suit was to punish someone and you know what, all that does is make physicians more gunshy and likely to practice defensive medicine driving up costs for all of us and exposing more patients to possibly unneeded procedures and risks of complications.

  30. Everyone should write a letter to their congressmen and representatives and request changes be made to our broken system of justice to prevent absurdities like this from reoccurring. If anyone has a better idea, then let’s hear it. I could sit hear all day and complain to you how disgusted I am that these parents did what they did and walked away with the winning lottery ticket, but at the end of the day, they did it because the system allowed them to do it.

  31. Once again, emotions prevail. All patients want 100% safety and success in a system that can’t possibly deliver it. There was no malpractice here. A device was used, it broke, a small piece of metal travelled to the brain and caused a death. A broken device is not a hospital’s fault, a doctor’s fault or a manufacturer’s fault, it is an accident. Unfortunately, some lawyer is going to receive at least $5 million of the settlement. Could their hourly billings truly account for that sum? That’s 10x the average annual salary for a CV surgeon who operates on over 100 patients a year. Does the payment of this money fix this tragic loss? Does this ease the family’s pain? I doubt it. Does this “punish” the hospital and doctors? It only makes them want to stop trying to fix unfortunate problems when the risk is very high. Given the place where this child was cared for, I find it hard to believe that they did not receive the very best of care and simply have an unfortunate outcome with no “fault” to any party involved.

  32. i feel that the doctors should or technicians should check all equipment before any procedure is it is both their responsibiliites so the tech’s and doctors are at fault because i used to buils x-ray machines back in the 1980’s in connecticut for picker corporation and if parts and wires were not right we were written up or fired so both are wrong

  33. If the physician(s) Knew about the piece of metal, Should have known about the piece of metal or Could have known about the piece of metal………………..then s/he or they are guilty of malpractice.
    If none of those facts can be proven then………………how are they at fault

  34. Agree with Emmit, but with an addition. Is Tetrology of Fallot a congenital defect or hereditary? In either case with the parents think that someone is responsible, can a lawyer representing the desceased child bring a lawsuit against the parents for the fact that the child had the defect? I feel bad for their loss…but apparently we are guarenteed health and wealth in this country.

  35. We need tort reform in the U.S. This is only one small example. Because most legislative bodies, and the courts are run by the same cabal of lawyers this problem will continue to get worse. It has reached the point where one can be completely irresponsible be injured and have a very good chance of getting a good judgement. The legal system is no longer fair, balanced, or impartial.

  36. Bad outcomes do not equal malpractice.
    Hiding a known problem or complication does.
    I would not think that it would be routine to do a scan or angiogram of the brain following heart surgery.
    Google or wikipedia Tetrolagy of Fallot. It is congenital complex heart disease. Cases like this remind me of a patient who sued (and won, later overturned) a hospital in Philadelphia for the loss of her psychic powers following a CT scan of her brain. No, we don’t need tort reform…

  37. There is not enough information to form a viable opinion other than the fact that a jury felt there was enough evidence to assign liability if not guilt. Doctors are in general mechanics, one in a million is a “marvel” if that….more often than not, they are the lesser of two evils

  38. And yet you don’t sue your “mechanic” when he fixes your car and either a totally new problem crops up right after you get it back or he fixed it wrong, or he didn’t fix the problem the first time at all. You complain, you might go back to the same mechanic again or you might go to another mechanic.

    My point is exactly as I stated, bad outcomes do not equal malpractice. Until Americans get that into their head, that just because mom died doesn’t mean someone must pay, we will never move forward. Tort reform is critical to healthcare reform.

  39. The bottom line from all (most) of the very inciteful comments above seems to boil down to this: While the majority of folks commenting on this incident seem to be able to agree on what the reasonable outcome should have been in this case, it is not a surprise that the actual outcome was radically different. The commentaries above have nicely listed the reasoning quite well and completely. Tort reform will not happen with the congress as it sits now, and this case is only an example of the unquestionable disfunction of the entire body. We need to vote the disfunctional, self-interested bums (of both parties) that serve nobody but themselves out of office before they do worse damage (if that is possible). We also need to let our representatives know WHY we are booting them out, and let the incoming know that they are on notice. Frankly, if we tolerate letting narcisists represent us, we are all to blame.

  40. I am in the medical field and have been for too many years to count. I feel sorry for the loss of a child, but there are risks that are taken to try to make the person better, but it seems in this day and age if things don’t work out lets sue. This is the reason malpractice insurance has skyrocketed and some doctors had to leave their field as they can no longer afford this insurance. No one should take things lying down, but things are out of our control. There is a higher being in force.