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Continuity of Care Issue Ends Up in Court

Joseph L. Fink III, BSPharm, JD
Published Online: Wednesday, November 16, 2011   [ Request Print ]

When a communication breakdown leads to patient harm, the statue of limitations regarding negligence becomes an issue.


Issue of The Case

When a post-surgical patient is started on an antibiotic requiring close monitoring while in the hospital and is transferred later to a long-term care facility where the therapy was not as closely monitored, resulting in damages, how shall the statute of limitations be applied?

Facts of The Case 

An 81-year old woman who had undergone a total knee replacement 17 years earlier had a revision of that surgery performed in 2003. A post-surgical infection was deemed to be susceptible to treatment with gentamicin and it was prescribed by the partner of her surgeon. After selecting the antibiotic to be used, the prescriber asked the pharmacy “to become involved from the standpoint of deciding the appropriate dose of the medication and monitoring the medication.”

The order called for 350 mg administered intravenously every 24 hours with a Gentamicin Intermediate Level test administered 1 day later to assess kidney clearance of the drug. The pharmacist found that the patient handled the drug appropriately at 12 hours after initiation of therapy. A subsequent chart note indicated “Pharmacy following.” 

The pharmacist testified that this meant “The pharmacy department would be involved in this patient’s care moving forward relative to whichever drug we’re being consulted for. So, yes, that would be ‘Give us your initial input on how and what drug to order, how to dose it,’ and it would also be ‘Give us your input moving forward about how to monitor this drug, follow-up with the patient,’ those sorts of things.” 

The patient was transferred to a skilled nursing facility after a social worker verified that the staff there could administer the intravenous antibiotics. Care responsibility was transferred to the patient’s primary care physician and a discharge summary and transfer orders were sent with the patient.

The transfer orders called for a single follow-up lab test 2 weeks later. A neurologist testified that this fell below the applicable standard of care. The transfer orders stated that the same antibiotic was to be continued with “monitoring by pharmacy.” Further, the patient’s discharge summary specified that the gentamicin should be continued for 4 weeks, and indicated “dose per pharmacy.” The hospital pharmacist testified that this was an order to the pharmacy serving the facility receiving the patient; the hospital pharmacy is not sent that document.

At the skilled nursing facility, monitoring was hit or miss, and it was alleged that this inattention led to physical damages suffered by the patient. The patient filed suit against several physicians and the nursing home, alleging negligence in handling the transfer of responsibility for her care and in monitoring the effects of the medication following her discharge from the hospital. The pivotal legal issues in the proceedings surrounded application of the statute of limitations to the facts of the case—when did the patient know what?

The trial court granted motions for summary judgments by a number of defendants and motions for partial summary judgment by several other defendants based on the statute of limitations. The argument was that the patient had known about the damages she had suffered for longer than the 2-year period within which a malpractice claim must be filed under the law of that state. However, the judge ruled that it was a matter for a jury to decide whether she was entitled to recover “on the theory of recovery for negligence in failing to monitor administration of gentamicin.” Following a 3-week trial, the jury returned a unanimous verdict in favor of the defendants. The defendants then filed an appeal related to application of the statute of limitations to the matter, arguing that the trial court judge had erred in dismissing a number of defendants from the case on that basis.

The Court’s Ruling

The state court of appeals ruled that the trial court judge had made proper rulings in the case. The appeal was denied.

The Court’s Reasoning

The plaintiff knew in 2004 that the medication caused damage. However, she argued that she did not learn until 2 years later that the primary care physician and the nursing home had a legal duty to monitor use of the medication. From her perspective, the period for the 2-year statute of limitations should have started on that later date.

The court did not agree. The legislature adopted the rule that the statute of limitations starts when the patient knew, or through the exercise of reasonable diligence should have known, of the injury. Under the facts of this case, that was the earlier date, not the later date. PT


Dr. Fink is professor of pharmacy law and policy at the University of Kentucky College of Pharmacy, Lexington. 

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