The death of Dr Derek Shepherd in Grey's Anatomy

Would Meredith have a claim for medical negligence under Scots law?

In the last season of Grey’s Anatomy, popular character Dr Derek Shepherd (aka McDreamy), Consultant Neurosurgeon, died following a road traffic accident … or was it an act of medical negligence?

The storyline offers a dramatic glimpse into the kind of sequence of events which could potentially give rise to a claim for compensation due to medical negligence. Here, we look at the facts of Dr Shepherd’s treatment and subsequent death and ask the questions whether his wife Meredith would have had a case for medical negligence if this had happened in Scotland

Picture source: ABC network

The death of Derek Shepherd

Following the accident, Dr Shepherd was transported to the next nearest hospital. Viewers saw an attending consultant meet the paramedic. When asked “what do we have?” the paramedic states: “blunt force trauma to the head, chest and abdomen. Persistent hypotension after two litres of saline. Pulse is already at 130.” The consultant exclaims to the paramedic that the hospital is not a trauma centre and that they are not equipped to deal with those types of injuries. They don’t have the rooms or the equipment and the paramedic knows that. After the paramedic protests, the consultant gives in, stating: “All right, fine, but this isn’t on me.”

As events unfold, viewers hear Dr Shepherd narrating the problem in his mind and advising, in his opinion and experience, what the doctors have to do. Only viewers can hear this as he is unable to communicate. It becomes clear, very quickly, that the doctors are not experienced enough to deal with the type of trauma that they are presented with.

Dr Shepherd notes that he most likely requires four units of blood. He probably has a scalp lac and multiple fractures. He is unable to communicate with the doctors and therefore it is clear that he has a loss of verbal skills. A CT scan should be carried out, without delay.

During that, the doctors are arguing with each other whilst they ascertain the best course of action. They note the following issues:

• Possible bleeding in the brain
• Pupils are equal and reactive
• Flail chest in the right – one doctor states that she needs a 36 French tube immediately.
• Still hypotensive and tachycardiac
• He could be bleeding in his chest
• Bleeding in the stomach
• A trauma panel and x-ray is also called for

Dr Paul (who appears to be in charge) is looking to investigate the bleeding in the chest but another doctor, Dr Edie, considers it is more prudent to obtain a head CT given that they do not know the extent of Dr Shepherd’s head injury. Dr Shepherd quietly agrees with that – that is the correct course of action as the head injury is the priority.

Dr Paul exclaims to Dr Edie to look at the ultrasound and points out that Dr Shepherd is bleeding into his belly and that they don’t have time for a CT scan – they have to get Dr Shepherd to the operating room. Dr Edie suggests once more about the CT scan but she is shot down by Dr Paul advising that the CT can wait. Dr Shepherd, again quietly, pleads that Dr Paul listens to Dr Edie.

It is clear from the episode that the CT could not wait and Dr Shepherd’s head injury had to be looked at as a matter of urgency. There was a time in relation to the bleeding but not with regards to the head injury.

As the story progresses, Dr Shepherd’s vitals stabilise and Dr Edie suggests once more that a CT scan would be more prudent before looking at the bleed in the stomach but Dr Paul angrily states, once more, that it is too risky and that Dr Shepherd could crash out in the scanner. They have to open him up to find the source of the bleeding.

At this point, fans of the show can hear Dr Shepherd, advising to himself, that he is going to die because the doctors are not properly trained.

As the doctors put Dr Shepherd under sedation, fans hear that they shouldn’t have done that because he has a head lac. As the surgery unfolds, Dr Shepherd’s stats begin to drop and his breathing decreases as the hospital machines beep rapidly.

The doctors in a panic try to find the cause of the problem and identify a large hemothorax, Dr Paul wants to open his chest but we hear that he should have waited to see how much blood would come out as it would have probably stopped.

Dr Paul cannot find any lung laceration and the Hilum was intact. Dr Shepherd was also not bleeding in his chest. Dr Paul exclaims that it makes no sense and that they must be missing something. Dr Shepherd, states once again, to himself, that they should check his head, he has a head lac. Finally the penny drops, and neurosurgery dept. is called but it is too late. Far too much time has passed without treating the head injury.

We hear, during the episode, that a CT scan would have flagged up the problem but Dr Paul failed to prioritise appropriately the medical issues at hand. The neurosurgeon who later attends also confirms Dr Paul’s errors. Dr Paul considered the bleeding in the stomach more important than ascertaining the extent of Dr Shepherd’s head injury. Dr Shepherd was stable and could have withstood the time taken to get a CT scan which would allow the doctors to understand the full extent of the problem and, thereafter, treat it.

Dr Shepherd sadly dies as a result of complete organ failure and no brain activity. At the time of his death, Dr Shepherd is not a candidate for organ donation as it is pointed out, “by the looks of his chart, there’s not much left that works to donate.” Dr Shepherd’s life support machines are switched off by his wife, Meredith.

So is there a case for medical negligence?

The Scottish test for medical negligence is based on a case called Hunter v Hanley.

That case sets out a three-stage test:

1. There is a usual and normal practice
2. That practice was not followed in Dr Shepherd’s case
3. The course adopted was one that no ordinary doctor, in that field, would have taken had he/she been acting with ordinary care

You will note from the test that it is not enough to show that an error was made. That error has to be so severe that no other doctor would have committed it.

Thereafter, if you can prove negligence you also have to be able to prove that the final clinical outcome would have been different if it was not for the act of negligence.

In Dr Shepherd’s case, if his wife Meredith wanted to make a claim she requires to prove that when someone presents with blunt force trauma to the head, chest and abdomen, that the usual and normal practice would be to carry out a head scan in the form of a CT immediately. That injury would be treated more seriously than the bleeding in the stomach/chest and thus given priority.

It is clear that that practice if it is the usual and normal practice, was not followed in Dr Shepherd’s case given that the bleeding was treated as the priority.

The final hurdle of the 3-stage test would require the instruction of an expert report – from someone in a similar position to the doctor that Meredith alleges negligence against:

In this case, a report would not be required from a trauma surgeon or a neurosurgeon but from a doctor of similar nature to Dr Paul.

Consultants within the hospital have already made it clear that they are not a trauma centre and do not have the equipment to deal with such injuries. That would suggest that they are also not specialised in dealing with such injuries. That is stressed on more than one occasion during the hour-long episode.

However, despite the fact that the hospital is not a trauma centre, one doctor employed therein, Dr Edie, felt it prudent and important enough to carry out a CT scan so it may be that Dr Paul has been medically negligent. However, the expert witness would have to confirm that in a written report.

If Meredith was able to prove that Dr Paul acted in such a manner that no other, similar, doctor would have adopted had he been acting with ordinary care, then she can move to the next step of proving that the outcome would have been different had it not been for Dr Paul’s negligence.

In relation to the information available, during the hour-long episode, that test is not in dispute. Dr Shepherd would have survived had a CT scan been carried out and treatment provided in relation to the head injury.

But what about the paramedic?

We hear during the episode that the paramedic, despite Dr Shepherd’s injuries, takes him to a hospital that is a non-trauma centre and that doesn’t have the correct equipment to deal with such injuries. We also hear that the paramedic is aware that the hospital is not a trauma centre.

In that case, we would recommend that Meredith also instructed a negligence report from an expert paramedic to comment on the usual and normal practice when dealing with trauma injuries and a patient who is at death’s door. It would need to be ascertained whether the next nearest trauma centre was too far away given Dr Shepherd’s injuries; would he have lasted the journey?

Would any other paramedic, exercising ordinary care, have taken Dr Shepherd to a non-trauma hospital given his injuries?

Again that is for an expert witness to decide.