Legal Review & Commentary: Failure to timely diagnose results in $5M verdict
Legal Review & Commentary
Failure to timely diagnose results in $5M verdict
News: A woman underwent a hysterectomy. During the procedure, an endotracheal tube was inserted, which resulted in a perforation of the woman's esophagus. The woman complained of difficulty in swallowing and pain extending from her chest. Three days after surgery, the woman was diagnosed with a perforation of her esophagus. The woman underwent multiple corrective surgeries, but the injury resulted in a severe infection, pneumothorax, mediastinitis, and hypoxic damage ultimately resulting in permanent dementia. The woman brought suit against the hospital and the anesthesiologist for malpractice in inserting the tube and failing to timely diagnose her injuries. A jury awarded the woman $5 million in damages.
Background: A 79-year-old homemaker underwent a hysterectomy at a local hospital. During the procedure, an endotracheal tube was inserted. The woman suffered a perforation of her esophagus during the insertion of the tube, which was not immediately discovered.
While the perforation was not immediately detected, the woman began to experience impairment in her ability to swallow, and she complained of pain extending from her chest. In the following days, the woman suffered a severe infection, a pneumothorax, which is a collapse of the lung, and mediastinitis, which is inflammation of the tissue of the middle portion of the chest. A test was performed, which showed that the woman's blood contained an abnormally high concentration of white cells. The physicians finally discovered the perforation on the third day after surgery. The woman underwent multiple surgeries, including open surgery that repaired her injury, placement of an esophageal stent, and another surgery to remove the stent, but the injury resulted in hypoxic damage ultimately leading to permanent dementia.
The woman brought suit against the hospital, the surgical team's anesthesiologist, and the anesthesiologist's practice group, alleging that the hospital staff failed to timely diagnose the perforation and that this failure constituted compensable medical malpractice. Plaintiff's counsel argued that the anesthesiologist was not qualified to use the instrument that was used to insert the tube. Plaintiff's counsel further argued that, based on the woman's symptoms, a diagnosis could have been made in the 12 hours that followed the surgery. Counsel argued that a more timely detection would have minimized the woman's residual injuries.
Defendants proffered the testimony of an expert anesthesiologist. The expert contended that the intubation process involved several people and several instruments, and there was no way that plaintiff's counsel could have identified the instrument that caused the perforation. Defendants' counsel further argued that the injury that the woman suffered was a rare but known risk of intubation.
For seven months after the surgery, the woman was fed through a nasogastric tube and a gastric tube. She underwent seven months of rehabilitation and required assisted living care thereafter. The woman sought damages for past and future medical expenses and past and future pain and suffering. A jury determined that the defendants were liable and rendered a verdict of $5 million in favor of the woman.
What this means to you: This case reflects the occurrence of an infrequent complication of a fairly frequent procedure, the process of inserting an endotracheal tube. While no one likes to see a complication occur, in this case the issue is the failure to follow up on the signs, symptoms, and complaints of the patient postoperatively, which, had they been addressed, might have led to an earlier diagnosis and intervention. Early diagnosis and intervention may have resulted in a different, more positive outcome for this patient.
Hospitals verify competency of employees to perform procedures and use equipment on an annual basis as a part of the employees' annual evaluations. But this case involved an anesthesia group, which is usually not directly employed by the hospital. Some anesthesia groups employ their affiliated anesthesiologists, while others contract with their staff. In either case, each physician is credentialed by the hospital. The contract between the hospital and the anesthesia group should be reviewed by the risk manager and legal counsel, and by risk management to identify risk assumptions, risk exposures, appropriate insurance, and adequate limits of insurance, in addition to loss prevention activities. One such loss prevention technique, which may or may not be itemized in the contract but should be utilized by the group, is validation of competency of anesthesiologists and anesthetists in the group. Such a practice prevents the allegation that the anesthesiologist was not qualified to use a specific piece of equipment used to insert the endotracheal tube. One must take into consideration that all physicians may not have received training or used certain equipment during their residency. For example, the equipment may have come on the market after they finished their training. Even if certain equipment was on the market, it may not have been used in a certain facility or by a particular anesthesiologist (as in this case).
The risk manager must realize that mere language in a contract may not prevent the allegation of agency or ostensible agency from being asserted unless steps are taken to notify patients that the anesthesiologists are employees or agents of the anesthesia group, not of the hospital. This can be accomplished by including such language in the anesthesia consent and in the general admission consent. In addition, the hospital risk manager should take steps to be sure the anesthesiologists do not wear scrubs or other items identifying the hospital, such as white coats that have the name of the hospital stamped or embroidered on them. Collaboration with the anesthesia group's risk manager or risk management designee will assist in addressing this issue and in educating the physicians on why this is important.
A postoperative pain in the chest after a surgical procedure done in a completely different area of the body should be evaluated. The signs and symptoms and the patient's complaints should be reported to the surgeon to be evaluated. A sore throat is the most common postoperative complaint. Rarely is difficulty swallowing a complaint, especially when coupled with chest pain. This should have been evaluated promptly.
This was an untoward outcome that would benefit from a thorough root-cause analysis to identify first how the initial untoward complication, the esophageal perforation, occurred, and why the delay in the diagnosis occurred, which led to the more significant complications. Such a root-cause analysis would be a team effort, involving medical staff, surgeons, anesthesiologists, nursing staff, and risk management.
A woman underwent a hysterectomy. During the procedure, an endotracheal tube was inserted, which resulted in a perforation of the woman's esophagus.Subscribe Now for Access
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