Legal Review & Commentary: Plastic surgery procedure ends in brain damage: $5.75 million settlement
Legal Review & Commentary: Plastic surgery procedure ends in brain damage: $5.75 million settlement
By Jan J. Gorrie, Esq., and Mark K. Delegal, Esq. Pennington, Moore, Wilkinson, Bell & Dunbar, PA Tallahassee, FLNews: A part-time exotic dancer and graphic artist underwent plastic surgery procedures as an outpatient at her physician’s office. The physician’s certified registered nurse anesthetist (CRNA) overmedicated the patient, who went into respiratory arrest. The hallway and doorways were too narrow for EMS to get a stretcher into the physician’s operating room. The patient was eventually taken to a hospital, but not before she suffered severe brain damage from long-term deprivation of oxygen.
The patient and her mother brought suit against the physicians and nurse anesthetist. Prior to jury selection, the defendants settled for $5.75 million.
Background: The plaintiff, a 39-year-old part-time exotic dancer and graphic artist presented to her plastic surgeon’s New York City office for the replacement of cheekbone implants, a brow lift, laser freshening around her eyes, and the injection of Isologen into her lips. The general plastic surgeon consulted with and was joined by an ophthalmologic plastic surgeon. Assisting the surgeons was the plastic surgeon’s CNRA, who was responsible for sedating and monitoring the patient. A third physician, who was licensed in Brazil but not in the United States, accompanied them.
During the pendency of the case, the defendant physicians claimed that the third physician was only there to observe. That claim was later contradicted by the CRNA.
The surgery was initiated by the CNRA’s administration of an IV sedation mixture, which included a narcotic and a barbiturate. The sedation drugs caused the plaintiff’s oxygen-saturation level to drop to below 85%. When it rose to 92%, the CRNA administered an additional dose of barbiturate. The first procedure was the injection of Isologen. When the plastic surgeon began the injection, the patient went into respiratory arrest. Resuscitation efforts began, and a 911 call was made.
EMT responders could not get their stretcher into the operating room because the hallway leading to the room had an opening that was only 32 inches wide. The doorway into the operating room also was too narrow. By the time the patient was transported to a nearby hospital she had suffered irreparable brain damage from the lack of oxygen.
Following her discharge from the hospital, the patient and her mother sued the providers, claiming the plastic surgeon failed to properly ascertain the qualifications of the defendant CRNA. The CRNA had been certified nine years prior to this case. But under the law of the jurisdiction, re-certification is required every two years.
Had the CRNA been employed by a hospital or an ambulatory surgery center, failure to have an up-to-date CRNA certificate would have been an absolute bar to practice; but was unclear whether the lack of certification was an absolute bar to practice in a physician’s outpatient office.
The plaintiffs also contended the plastic surgeon failed to properly supervise the CRNA, as the physician could identify neither the source nor amount of sedation medications that were administered. The plaintiffs also claimed all the defendants failed to properly monitor the patient, misused dangerous drugs during her initial sedation intake, and failed to properly resuscitate her by foregoing the use of supplemental oxygen and using an Ambu bag that was too small.
Initially, the City of New York also was named in the suit as the EMTs provided a portion of the care to the plaintiff, but the City was dismissed on summary judgment. The EMTs testified that the defendants’ resuscitative efforts were grossly inadequate as the Ambu bag employed by the physicians and CNRA was too small and that the operating team had failed to administer supplemental oxygen. The EMTs said the application of one-handed chest compressions as opposed to full-blown cardiopulmonary resuscitation was of little or no use to a patient who had stopped breathing. In addition to claiming that the plastic surgeon failed to ensure that his office allowed proper emergency access and egress for a patient accompanied by emergency medical personnel, the plaintiffs maintained that the plastic surgeon failed to have appropriate emergency care equipment on site and failed to have staff trained to handle patient emergencies.
At his deposition, the CRNA pled his Fifth Amendment rights against self-incrimination and refused to answer questions regarding the drugs he had administered to the plaintiff or where he had obtained them.
The CRNA testified that a third physician had scrubbed in and was injecting the patient with Isologen when she stopped breathing.
The case was confidentially settled for $5.75 million.
What this means to you: Many of the outstanding risk management issues could have been avoided or minimized had the procedures been performed in a hospital or a more heavily regulated outpatient facility. The physician’s office also could have been better designed, equipped, and staffed.
"For instance, in most jurisdictions licensure requirements and building codes require hospitals and ambulatory surgery center operating suites and rooms to be built and maintained with ample doorways and adjacent hallways," say Lisa Winton, RN, BSN, LHRM, CPHQ, and Gaby Morley, RN, BSN, LHRM, of Tampa (FL) General Hospital. "It is unlikely that in such regulated facilities, EMTs or other first-responders would have been delayed in accessing and treating the patient as was case in this scenario. In addition, more regulated facilities would have been equipped with a code cart, and inclusive in the cart would have been appropriately sized Ambu bags. Aside from the architectural limitations that impacted the emergency stretcher’s ingress and egress, one would have presumed that an appropriately stocked code cart should have been readily available in a physician’s office where surgeries were regularly performed. At a minimum, if the physician’s office was not equipped to handle patient emergencies themselves, they may have been well advised to have a standing relationship with the closest hospital.
"From a medical standpoint, it is not clear why the CRNA administered another dose of barbiturate following an episode of decreased oxygen saturation. Instead, one might have expected the administration of oxygen, which seems not to have occurred. Furthermore, as to the actions of the CRNA, within hospitals [as well as in some outpatient ambulatory surgery centers], personnel are generally required to document all medications that are administered. Procedurally, this would have virtually eliminated the ability of the physicians CRNA from pleading the Fifth with regard to what medications the patient was given and where those medications came from," Winton and Morley say.
"As for the presence of the third physician, if the physician had merely been observing and was not licensed to practice in the jurisdiction, this opens the question as to why the other physicians would have allowed her to even touch the patient, which also raises questions as to the credentials of the other two plastic surgeons. Obviously, one does not have to credential oneself in one’s own office, but at least the specialist surgeon was practicing in the other’s office, and there is no indication that his competency was questioned prior to the incident. One wonders that had any of the physicians recognized their own shortcomings or those of their CRNA or at least those of the physical setting, perhaps this patient’s misfortune would not have been so great," Winton and Morley add.
Hospitals and ambulatory surgery center comparisons aside, physician’s office health practitioner personnel should be qualified to perform some minimal levels of emergency health care services and be qualified to perform the duties for which they are hired.
"In this case, one wonders what the CNRA’s qualifications were. One of the basic requirements of hiring and continuing the employment of licensed personnel is to ensure that they are appropriately licensed at the time hired and that such licenses are maintained. In addition, in physicians offices where surgeries are being performed which require the use of anesthetics, at least one person in the office be qualified in basic life support [BLS] or even better advanced cardiac life support- [ACLS] certified, just in case something untoward occurs. These are basic skills for most health care practitioners, but may mean the difference between the life and death of a patient. The fact that only one-handed compressions were being attempted on the patient indicates that it is likely no one had current BLS of ACLS certification," conclude Winton and Morley.
Reference
• Angela Bourodimos, a mentally incompetent person, by her mother and court-appointed guardian, Eleni Bourodimos, v. Doctors #1-2 and Frank Halcomd, RN, New York County (NY) Supreme Court, Index No. 100089/98.
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