News: A 49-year-old woman was brought to the hospital after a car crash. She was unconscious and had internal bleeding with a lacerated liver. The hospital staff performed an endotracheal intubation and then successfully operated on the woman’s liver. The woman remained at the hospital with the breathing tube in for a few days after the surgery. An ear, nose, and throat doctor (ENT), who was also an employee of the hospital, noticed swelling in her airway and recommended that the woman be given steroids and have a pulmonary consultation for extubation. According to the plaintiff’s complaint, the surgeon administered a smaller amount of steroids than the ENT recommended, did not consult about an extubation, and instead performed a temporary tracheostomy.
The woman was released with the breathing tube, but she returned a few weeks later with an infection in the neck area where the tube was located. After consultation, the woman was sent to trauma surgeons at another hospital who unsuccessfully tried to repair damage that had occurred to the woman’s vocal cords and larynx. As a result of the woman’s damages, she requires a permanent breathing tube. The woman sued the hospital for the conduct of its staff. She specifically alleged that the surgeon was negligent for failing to conduct a pulmonary consultation before performing the tracheostomy and for failing to properly place the breathing tube lower. She also claimed that she was not given the amount of steroids that the ENT recommended. The defense argued that the woman’s obesity made finding the proper placement very difficult and contributed to her being given a smaller amount of steroids than the ENT recommended. The jury agreed with the woman and found the hospital fully liable for the $2.8 million verdict.
Background: In March 2009, a 49-year-old unconscious woman was involved in a car accident and brought to the hospital. She was bleeding internally and had a lacerated liver. To assist the woman’s breathing during anesthesia, hospital staff performed an endotracheal intubation, which involves placing a breathing tube through the patient’s mouth. The surgeon then successfully treated the woman’s liver and internal bleeding. The breathing tube needed to remain in for a few days after the surgery. An ENT physician who worked at the hospital noticed swelling in the woman’s airway and recommended that the woman be given 8 mg of steroids and have a pulmonary consultation for extubation, the removal of the breathing tube. Instead of the 8 mg of the steroids, the woman was given 4 mg, and according to the woman’s complaint, the surgeon did not have a pulmonary consultation regarding extubation. Rather, the surgeon decided that the woman’s neck was too thick and short and that the possible loss of airway made the procedure too risky. The surgeon then performed a temporary tracheostomy, which is an incision made in the windpipe through which a tube is inserted that assists the patient’s breathing.
The woman was released and provided homecare instructions to change her breathing tube daily. A few weeks later, the woman returned to the hospital with an infection in the neck area where the tube was located. Physicians found tissue swelling, as well as an airway collapse and obstruction. They also determined that the breathing tube was placed too high.
The woman went to another hospital, where trauma surgeons found that the woman had suffered damage to her vocal cords and larynx. Surgeries to repair the damage were unsuccessful, which left the woman permanently requiring a breathing tube device to speak.
The woman filed a medical malpractice suit against the first hospital for the negligent acts of its staff. The woman alleged that the surgeon’s conduct fell below the appropriate standard of care when the surgeon failed to request a pulmonary consultation before the tracheostomy and failed to place the breathing tube in the proper place.
She also said that she was not given the dosage of steroids the ENT recommended. The defense argued that the fact that the woman was morbidly obese made proper placement very difficult and contributed to her being given a smaller amount of steroids than the ENT recommended. The defense further argued that the woman’s need for a permanent breathing tube was caused by her not changing her breathing tube daily or following other homecare instructions. In a five-day trial, the jury found the hospital fully liable and awarded the woman $2.8 million, which broke down as just more than $1.6 million for pain and suffering and loss of wages, and just less than $1.2 million for future medical expenses.
What this means to you: There is a clear lesson from this case. Despite natural obstacles, such as a particularly short and thick neck making a procedure difficult, the standard of care that a physician is expected to provide still can be breached when the physician doesn’t comply with recognized standards. Neglecting to consult with a pulmonologist before performing the tracheostomy, as recommended, was the first breach of the standard of care.
While it might have been obvious to the surgeon that weaning the patient off intubation probably would not be possible, the documented support of a pulmonologist likely would have lessened the surgeon’s liability. More generally, physicians too frequently neglect to seek the consultations of their peers to support difficult decisions made in complicated cases. In this case, the patient’s obesity and thick, short neck made placing the tracheostomy incision at the desired location, through the second, third, and fourth tracheal ring, difficult. This difficulty resulted in the woman’s damages from the tracheostomy incision being through the first tracheal ring and the cricoid cartilage. While the surgeon noted that the woman’s neck made placement difficult, the surgeon’s report incorrectly stated that the incision was made through the second, third, and fourth tracheal ring. Here again, the surgeon might have asked for the assistance of another surgeon with experience performing difficult tracheostomies.
This effort would have shown the surgeon’s concern for the patient and his efforts to provide her with an optimal outcome.
Another way the surgeon and hospital could have better sheltered themselves from liability would have been to also report every step taken to properly place the tracheostomy, as well as any postoperative concerns.
A report reading that the surgeon took every step to best place the tracheostomy and provided a detailed explanation of where the incision was made and possible outcomes that might occur would have shown due diligence on the part of surgeon and hospital. This information would have provided evidence to the jury that the hospital and its staff made their best efforts to overcome a natural obstacle, and it likely would have resulted in less liability, or perhaps no liability, for the hospital.
There is another example demonstrating that physicians and hospitals seeking to shelter themselves from liability should keep detailed and accurate records. That example is the issue of the ENT’s recommendation. The woman’s complaint points out that the pulmonary consultation recommended by the ENT as an alternative to the tracheostomy never occurred, and the surgeon moved forward with the tracheostomy without following a colleague’s recommendation.
The surgeon maintained that the recommendation was “discussed” and determined to be too risky due to the woman’s medical condition.
However, there was no recording in the patient’s file about the surgeon following through with the ENT’s recommendation, and there was no detailed and thorough explanation as to why the specific course of action was chosen. Thus, the woman’s attorney could use the patient’s file to create the narrative that the surgeon disregarded a fellow physician’s recommendation and carelessly moved forward with an unnecessary surgery that was compounded by additional carelessness.
A complete and legally useful record for the surgeon and hospital could have rebutted that narrative if the record had included certain items. Those items include the interdepartmental recommendations and the primary team’s considerations, a description of intent regarding the chosen course of action and possible outcomes, and supplemental reports that include new developments or considerations and demonstrate attentiveness to the patient’s condition. Furthermore, keeping a detailed record and filing of supplemental reports as a means of avoiding liability become an even more effective tool when dealing with patients who present unique and difficult obstacles, as medical errors and the legal liability are more likely to occur in these scenarios.
Court of Common Pleas of Delaware County, Pennsylvania. Case Number 2011-002362 (Aug. 24, 2015).
