A preschooler lost her ability to smile, swallow, move, and communicate because her breathing tube was inserted in the wrong place—just three centimeters away from where it should have been. This, according to the plaintiff in an innovative moot trial at Penn State Law with pediatric residents from Penn State Hershey Children’s Hospital on March 23.
“She doesn’t even know it’s me,” said the girl’s “mother” on the witness stand, commanding silence—and perhaps a few teary eyes—in Lewis Katz Hall.
The defense and nearly every doctor in the room saw things differently. This, precisely, was the point.
From the perspective of the pediatric residents, this case was not so simple. First, the defendant claimed that when she was alone with the girl, she in fact adjusted the tube upon the suggestion of a radiologist.
“Did you ever document that?” asked Joshua Auriemma ’10 on cross-examination.
“I did not document that,” responded Dr. Stephanie Addison, playing the part of the defendant.
Second, even if the defendant made a mistake, the issue of causation loomed. The patient had a serious head injury and seemed to have choked on vomit on her car ride into the hospital.
Dr. Stacey England testifies.
“This child had a bad outcome the moment she walked into the hospital,” said Dr. Saba Sheikh later that day. “You have to understand the mortality and morbidity of a subdural hematoma.”
Under the direction of “Judge” Gary Gildin
, jurors had to decide whether the defendant in the medical error case made a mistake, falling below the standard of care in the profession and, if so, whether the error was a
cause of the damage to the child. In this case the defendant was truly tried by a jury of peers—a panel of pediatric medical residents who also served as jurors and expert witnesses.
For law students, this was their first experience with truly expert witnesses.
“Professor Gildin warned us in trial advocacy class that an expert witness is a cobra waiting to strike, and I definitely got a taste of that during my cross-examination of the defendant doctor,” said Auriemma. “We also received a valuable lesson in the importance of sitting your expert down and asking them to lead the discussion about what they consider to be the important facts, rather than leading a discussion around facts that you as an attorney have flagged as important.”
Residents help lawyers prepare for trial
This is the kind of experiential learning that organizers that Professors Gary Gildin and Stephen Wassner had hoped for.
“The idea for this event was born from my realization that physicians in general and pediatric residents in particular have very little knowledge about the medical interface with the legal system, and I wanted to see how we could try to improve that. I thought the best way to try to do it is to immerse us all in an event where we live through a case,” said Dr. Steven J. Wassner, a professor of pediatrics at Penn State Hershey Children’s Hospital. His work includes several initiatives in patient safety and hospital quality improvement.
The immersion Dr. Wassner spoke of took the form of collaboration between law students and medical residents. Prior to trial, the doctors helped the law students understand the terms in the medical file and the realities of practicing medicine. For instance, once vomit is inhaled into the lungs there is little a doctor can safely do to get it out. They explained to future lawyers how tricky it can be to place an endotracheal tube in a child correctly and how the follow-up tests a doctor might do to confirm its placement, like a chest x-ray and auscultation (listening for breath sounds) are not foolproof.
Over lunch law students and the residents deliberated for more than an hour. Did the defendant doctor make a perhaps understandable mistake in a time-crunched scenario? Was the tube correctly placed the first time and then bumped when the child was moved? Did the defendant move the tube when she said she did and simply fail to document this critical action? Was the truth of the matter something in between of which they had not imagined?
Connecting afterward for an interdisciplinary panel discussion, Professor Gildin wanted to talk about how physicians felt about the process.
“A lot of times part of what the witness was trying to say was missed,” said Dr. Denise Drago. “It takes a lot of effort to understand what we are trying to say.”
Residents were dismayed that the facts of the case strongly suggested that child abuse had occurred, but the issue was not raised during the trial.
"It is very uncommon for a child with a normal medical history to present with a subdural hematoma. In these types of situations, non-incidental trauma is high on your list. You worry that somebody hit this kid, and some feel it is child abuse until proven otherwise," said Chief Resident Dr. Duane Williams ’01, who attended the event to support the residents he supervises.
Process leads to mutual understanding of issues
Pediatric medical residents at Penn State Hershey Children’s Hospital are among the hardest working Penn Staters. Capped at an average workload of 80 hours per week, they care for patients, counsel families, and prepare to enter the profession.
Dr. Drago voiced her objection that the courtroom testimony and the process made the physician appear uncaring. “We care so much. We know our actions decide whether a person lives or dies,” she said.
While stepping into a court room gives many lawyers a spring to their step, the prospect of landing in the defendant’s seat is an everyday source of anxiety for physicians.
“It is part of our baseline level of stress in practicing medicine,” said one doctor, who said she is aware of the pressure within the profession to order tests in part to later prove, if need be, that everything possible was done for a patient.
“Your bodies pay for this mentality,” said Dr. Wassner, whose work involves quality improvement initiatives for patient safety and hospital quality.
After announcing their findings, both disciplines wrestled with the difficult questions—how could we improve upon our current system? How does one engineer justice? Is it more efficient to address one doctor’s error or to address the systemic problems that are proximate causes of the mistake, like staff shortages or fatigue? Or, as Dr. Wassner asked, “is justice the same as money?”
“Today, two honorable professions communicated better to understand each other’s views, both in general and to the specific question of remedying medical error,” said Professor Gildin.
"We do not have all of the answers, but an event like this gives us the process for asking questions."