Legal Review and Commentary

Hospital's delay in scheduling heart surgery due to inability to pay leads to $1.2 million verdict

By Blake J. Delaney, Esq., Buchanan Ingersoll & Rooney, Tampa, FL

News: An uninsured man presented to the hospital complaining of chest pain. Doctors determined that he required heart-valve replacement surgery, but they discharged the patient until he could receive treatment for other conditions that could have complicated the heart surgery if left untreated. Six weeks later, the man returned to the hospital following treatment for his other conditions, and doctors cleared him for surgery. In the meantime, however, the man learned that he was ineligible for financial assistance from Medicaid to help pay for the heart surgery. A financial counselor from the hospital told the man that he should consult with an attorney to determine how to proceed. But before the man could finalize a plan to spend some of his retirement assets to pay for the surgery, he suffered a heart attack and died. The man's estate sued the hospital and two cardiologists. They claimed that delaying the surgery due to the decedent's financial condition violated the standard of care. A jury returned a $1.2 million verdict against the hospital, which represented $1 million in punitive damages and $168,400 in compensatory damages.

Background: An uninsured 62-year-old man experiencing symptoms of a heart attack was taken to the hospital for treatment. A cardiologist at the hospital diagnosed the man as suffering from critical aortic stenosis, and he transferred the patient to a nearby medical center for further treatment. Following testing at the medical center, doctors informed the man that he would need to undergo surgery to replace his aortic heart valve or else he would die. However, after learning that the patient had other health issues that could complicate the operation, such as dental disease and actively bleeding gastric ulcers, the man was discharged with instructions to first obtain treatment for those conditions before scheduling the open heart surgery.

At the time of the man's discharge, a financial counselor employed by the medical center assisted the patient with completing an application for financial assistance through Medicaid. The patient did not have medical insurance or a steady flow of income other than Social Security, but he did have equity in a home and $24,000 in a retirement account.

Over the course of the next six weeks, the man had nine infected teeth removed, leaving him with no teeth at all, and he received treatment for his ulcers. He then reported back to the medical center for an examination, at which point he was cleared for the heart-valve replacement surgery. In the meantime, however, Medicaid informed the man that he was ineligible for financial assistance due to his home equity and retirement account, and he was directed to meet with a financial counselor employed by the medical center. The financial counselor told the patient that he would need to spend some of his assets before he would be eligible for assistance, and she urged him to confer with an attorney to determine how to proceed.

The patient became upset, left the hospital and, eight days later, consulted with an attorney. The attorney developed a plan for the man to use some of his retirement money to pay for the surgery and medical bills without having to sell his home. The surgery never was scheduled and, unfortunately, the man suffered a heart attack two days later and died.

The man's estate sued the medical center and two cardiologists for wrongful death and professional negligence. Claiming that the decedent had been told at his initial consult that he would receive the heart-valve replacement surgery regardless of his financial situation, the plaintiff asserted that delaying the surgery violated the applicable standard of care.

The plaintiff also retained a psychiatrist to conduct a psychological autopsy of the decedent. The psychiatrist gathered information about the decedent by collecting all manner of records and engaging in interviews with those who knew and communicated with him in an attempt to uncover the decedent's mental state during the last days of his life.

The psychiatrist testified that the stress of being told his life-saving surgery had to be delayed caused the man's condition to worsen and accelerated the heart attack that killed him.

Legal representatives of the medical center disputed liability and asserted that its counselor never informed the patient that his surgery would not be scheduled until the man determined how to pay for it. The hospital further argued that the man had made the decision himself to leave the hospital to get his financial affairs in order before surgery. The plaintiff responded that the financial counselor had implied that no surgery would be available until the man determined how to pay for it and that the defendants should have done more to make sure the man underwent surgery. After a trial, a jury absolved the cardiologists of any liability but returned a verdict against the medical center for $1.168 million, comprised of $1 million in punitive damages and $168,400 in compensatory damages. The award of punitive damages was predicated on a finding by the jury that the medical center's conduct was outrageous.

What this means to you: It is important to note at the outset that the cost of this claim far exceeded what the cost of the surgery and hospitalization would have been had the care been provided, says Leilani Kicklighter, RN, ARM, MBA, CPRHM, LHRM, consultant/principal at The Kicklighter Group in Tamarac, FL, and past president of the American Society of Healthcare Risk Management. "This was a very expensive lesson about drawing a line in the sand about obtaining payment without considering all of the alternatives," she says. Especially considering that the man had been advised that the heart-valve replacement surgery was a life-saving procedure, the plaintiff probably had no difficulty painting a picture for the jury that the medical center was more interested in money than saving a life. Kicklighter advises risk managers to keep in mind what kind of impression a scenario like this one will have on the community, regardless of how strong a legal defense is believed to exist. "The award of punitive damages in this case is the kind of thing that gives a marketing staff gray hair," she adds.

Kicklighter questions the knowledge base of the financial counselor at the medical center who assisted the patient in completing the Medicaid application. "Someone who is in such a position should know the criteria for eligibility for Medicaid, and one such criterion is the amount of money held by the patient in savings and the patient's home equity. The financial advisor should have advised the patient of these threshold criteria and begun to explore alternatives for payment," she says. Kicklighter also points out that the hospital already had the information regarding the financial assets of the patient and could have worked with the patient for a payment program after the surgery. In addition, because many, if not most, medical centers provide care at a discount or at no cost for the indigent population, the medical center should have been familiar with this patient's situation. If the medical center would not perform the surgery without payment, however, then Kicklighter suggests that the facility should have taken steps to refer the patient to a facility that did provide care to patients in financial need, such as a teaching or a tax-supported facility.

This scenario also illustrates that risks can arise from any department within a health care organization and that risk management efforts should not focus only on the clinical areas. "This patient was basically given a death sentence; he had symptoms of a heart attack and was found to require heart replacement valve surgery or he would die. This was apparently not an emergency, but clearly an urgently needed surgery," says Kicklighter. "A root-cause analysis of this situation might reveal aspects and attitudes or concepts that led to this sequence of events and, if such factors were corrected, might prevent similar outcomes in the future."

Risk management should be sensitive to the role played by a facility's financial department, she says. "Because these personnel often give patients their first impression of the organization, the provider should undertake inservice of the staff, just as it does for others throughout the facility," says Kicklighter. She also advises the finance department's management to be sensitive to verifying the knowledge base of employees who serve in certain roles, such as those portrayed in this case. Management also should give due consideration to implementing a process that reviews each case with clinical input before a patient is denied care due to financial issues. "Such a procedure in this scenario might have prevented the patient's increased stress in an already clinically precarious situation," says Kicklighter. "Oversight by a supervisor might have recognized that arrangements for a payment program could be developed without the referral to legal counsel or referral to a different institution that would have enabled the center to perform the necessary surgery and deal with the payment issue afterward."


  • Common Pleas Court, Dauphin County (PA), Case Nos. 1,270s-1,999 and 2,510s-1,999.