October 2, 2023

Brian Burge & Kaitlin Marsh-Blake Obtain Favorable Jury Verdict

Brian Burge and Kaitlin Marsh-Blake recently obtained a unanimous jury verdict in Butler County, Kansas in favor of a local ED physician alleged to have caused the death of a developmentally disabled patient.  The case centered on the physician’s alleged negligence in failing to properly evaluate and diagnose an adult patient with a ventriculoperitoneal (VP) shunt.  The patient had been born with hydrocephalus, a condition that causes the buildup of excess cerebrospinal fluid in the brain.  A shunt was placed during infancy to channel excess CSF to the patient’s abdomen.  Although the patient had several revisions as a child, it had been more than 20 years since the patient had encountered any problems with the shunt.  At presentation to the ED, the patient had complained of persistent headache, nausea, vomiting and a breakthrough seizure that occurred just prior to the patient arriving in the ED.  The case was confounded by the fact that the patient had just been in the hospital 48 hours previously with acute pancreatitis.  During that stay, the patient’s anti-seizure medication had been withheld for two days and only recently restarted.  More importantly, a head CT performed immediately after the patient’s arrival failed to demonstrate any acute brain abnormalities or dysfunction in the shunt tubing.  The patient was admitted to the hospital under the care of a hospitalist but became unresponsive within 8 hours of admission.  The patient was later determined to have suffered a tonsillar herniation into the brain stem effectively resulting in brain death.

The case was defended on the basis that the ED physician performed the precise test required by the standard of care – Head CT – to evaluate for shunt dysfunction.  The defense argued the physician was entitled to rely on the results of the CT test and move forward in evaluating other causes for the patient’s presentation.  Although Plaintiffs – the parents of decedent – argued that consultation with a neurosurgeon was required, the defense asserted that a negative head CT in the context of possible shunt dysfunction yields better than a 95% probability that the shunt is working properly.  Thus, there was no need for emergent consult with a neurosurgeon and admission to a hospitalist was reasonable.  After four hours of deliberation, the jury returned a verdict in favor of the ED physician and awarded no damages to the family.