Legal Review and Commentary: OR fire breaks out, leads to $450,000 settlement
Legal Review and Commentary
OR fire breaks out, leads to $450,000 settlement
News: A man underwent surgery following a heart attack. During the procedure, the seal on the oxygen tube inserted in the patient's throat broke, causing the oxygen to catch on fire. The man suffered severe injuries and subsequently died. His estate sued the surgeon and the nurse anesthetist for negligence, but the defendants claimed that the decedent's death was due to his heart ailment — not the burns. The parties settled the case for $450,000.
Background: An 81-year-old retired teacher suffered a heart attack and was rushed to the hospital. After doctors decided to insert an oxygen tube in the man's windpipe to assist him with breathing, an otolaryngologist used an electrical surgical tool to seal off blood vessels in the man's throat. A nurse anesthetist then accidentally broke the seal on the oxygen tube, and the highly flammable oxygen caught fire, burning the man's mouth, trachea, and bronchial tubes, charring the inside of his windpipe, and melting the oxygen tube. The man died 19 days later.
The man's wife sued the otolaryngologist and the nurse anesthetist. She claimed that fire was a known risk and that when the seal broke, the defendants should have known that fire would result. The plaintiff also pointed out that the state had cited the hospital for "faulty practices" following the incident, causing the hospital to institute new operating room procedures and training programs.
The defendants acknowledged that the fire occurred but denied that it was anything other than a tragic accident. They claimed that the man's death resulted from his heart ailment and not the burns. Nevertheless, during the trial, the parties settled the case for $450,000. An informal poll of jurors following the settlement showed that they would have rendered a verdict in favor of the defendants. Apparently they thought that the defendants started the fire but that the burns did not cause the decedent's death.
What this means to you: The first issue raised by this scenario is what preventative measures could have been taken by the hospital to prevent the incident. Fires like these are simply not that common, says Edward J. Carbone, Esq., shareholder at Buchanan Ingersoll in Tampa, FL. Apart from the possibilities that the fire was the result of a defect in the operating equipment or a short circuit, the fire likely started as a result of the hospital's negligence. Carbone notes that nurses and medical staff members have a duty to know that electricity and oxygen are a dangerous combination. The oxygen supply must be kept as far away from the electricity as possible, and strict precautions must be followed during the procedure.
Accordingly, Carbone would not have been surprised if the jury had rendered a verdict in favor of the plaintiff. After all, he notes, the hospital's primary defensive tactic was to dispute causation, which is often not well regarded by juries. "A causation defense admits that the hospital engaged in negligent behavior, but disputes that the behavior was the legal cause of the plaintiff's injuries. Unless the plaintiff's theory on causation is entirely unrealistic, this is a hard argument to sell to a jury," he says.
When causation becomes the primary issue in a case, the plaintiff will argue that the patient would have lived for many more years in good health had the defendant not engaged in the negligent conduct, whereas the defendant will maintain that its conduct played no role in the plaintiff's ultimate injuries and that any bad outcome was simply the result of a natural course of events. In those cases, Carbone thinks that juries, more often than not, side with the plaintiff because "quite frankly, an injured patient is more sympathetic than an institution which has already admitted that it engaged in negligent conduct." For that reason, Carbone is not surprised that the hospital was anxious to settle the case. A settlement carries certainty, and there is probably no reason why the hospital should have suspected that the jury would have returned a defense verdict.
One final issue raised in this scenario is the hospital's choice to institute new operating room procedures and training programs following the incident. State evidence codes universally prohibit the admission of subsequent remedial measures as evidence of a defendant's negligence. The policy underlying this exclusionary rule is that a defendant should not be discouraged from implementing new procedures or training programs that might be able to prevent future injuries. Carbone points out, however, that a creative plaintiff's attorney usually will be able to find a way to admit such remedial measures into evidence, sometimes rendering the exclusionary rule useless. "Nevertheless," he advises, "a hospital should never think twice about changing certain policies and procedures if it means raising the overall standard of the care. Preventing evidence of liability from being established in one case cannot justify foregoing an overall improvement in patient care."
It is, of course, difficult to know whether the hospital's settlement for $450,000 was the best result in this case. Laws dictating what damages are compensable and how much a decedent's survivor may recover vary from state to state. Regardless of a facility's location, however, Carbone urges risk managers to constantly evaluate and update — if and when necessary — their policies and training programs relating to operating room procedures. A comprehensive policy will speak to the use of, and risks inherent in, all tools found in the OR. This scenario presents just one example of the potential dangers.
Reference
• Massachusetts Superior Court, Norfolk County, docket information withheld.
A man underwent surgery following a heart attack. During the procedure, the seal on the oxygen tube inserted in the patient's throat broke, causing the oxygen to catch on fire.Subscribe Now for Access
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