Legal Review & Commentary: Brain damage leads to partial paralysis and a $3.25 million New York settlement 

By Jan J. Gorrie, Esq., and Seema Patel Buchanan Ingersoll Professional Corp. Tampa, FL

News: A patient suffered a grand mal seizure, and CAT scans indicated the cause as an arachnoid cyst. The attending neurosurgeon recommended surgery to drain the cyst, relieving the pressure and seizures. The patient and his wife were given an explanation of a relatively simple stent procedure. However, after plaintiff was under anesthesia, the surgeon described to the wife a far more complicated procedure requiring a stent be placed into the basilar cistern of the brain. When the wife asked the surgeon to consult with her husband before performing the more complex procedure, he ignored her and performed the more difficult procedure.

The surgeon hit the basilar artery and its vasculature when he inserted the stent, causing brain damage.

The case settled for $ 3.25 million, with both the physician and hospital contributing.

Background: Although the patient was a healthy 49-year-old man with no prior history of seizures, he suffered a grand mal seizure at his home. He was taken to the hospital emergency department, where a CAT scan showed that an arachnoid cyst had triggered the seizure. The neurosurgeon advised the patient that treatment included surgical procedure to drain the cyst.

The neurosurgeon told the patient and his wife stating that the surgical procedure involved making an opening in the skull, running a drain down only as far as to the layer of the cyst, draining the fluid in the cyst, and placing a peritoneal shunt so that the fluid would continue to drain. As described by the neurosurgeon to the patient, the shunt was a tube, which would be placed in the hole in the skull and through the gap of the arachnoid layer just below the first layer of the skull. The tube would run under the skin behind one ear, through the neck and chest, and into the abdomen. Although the procedure sounded complicated, the neurosurgeon described it as relatively simple because it did not require cutting into the brain. The patient and his family agreed to the procedure, which was to be performed three days later.

On the day of surgery, the patient was given a pre-anesthesia sedative and prepped for the procedure. The neurosurgeon met the patient’s wife in the waiting area and explained the procedure. However, this time the neurosurgeon described that he would be placing the stent into the basilar cistern of the brain, which required him to cut into brain tissue. The patient’s wife said that was not the treatment explained to them previously. The neurosurgeon said he had consulted his partners and decided to place a tube from the cyst through the folds of the brain into the basilar cistern at the base of the brain stem because this would minimize any potential problem of the peritoneal shunt malfunctioning in the future. The surgeon also stated that he had asked someone from his office to call and explain this to the patient. She said no one had called her to advise her or her husband about the change. The patient’s wife explicitly asked that the neurosurgeon consult with her husband before performing the more complex surgery.

The neurosurgeon proceeded to perform the more invasive surgery without the patient’s consent. When the patient awoke from the surgery, he complained of a severe headache and nausea. Hours later, he became neurologically unresponsive and paralyzed from the eyes down. A CAT scan showed evidence of air buildup at the site of the cyst in the brain and bleeding in the brain. After 10 days of hospitalization, the patient’s wife noticed that he seemed to be aware of his surroundings. At trial, she testified that although he could not talk or move he was mentally aware, that he used an alphabet board and eye blinks to communicate with her.

Once discharged from the hospital, he was admitted to a rehabilitation facility. After extensive inpatient treatment he could walk one-eighth of a mile using a cane and with a strap around his waist, although he usually uses a motorized scooter to get around. He also regained 70% use of his left arm and, after speech therapy, could speak. At the time of trial he was participating in rehabilitation activities, attending outpatient sessions three times a week for four hours per day. His progress was attributed by the rehab facility to his determination and motivation.

Although the neurosurgeon was not employed by the hospital, the plaintiff brought suit against the hospital as well as the surgeon. The neurosurgeon had admitting privileges at the hospital and also at his private practice, which was in the hospital complex. The neurosurgeon and his private practice partners were the hospital’s exclusive neurosurgery group, with one of the partners acting as chairman of the hospital’s neurosurgery section.

In his case against the physician, the plaintiff claimed that when the tube was placed in his brain it hit the basilar artery and its vasculature, which nourishes the pons of the brain stem. The plaintiff contended this damaged the brain stem and resulted in his suffering a stroke from the shut-off of blood to the brain pons. In addition to the medical negligence claim for placing the tube so deep that it hit his brain stem, the plaintiff also claimed that he did not give informed consent to the procedure performed by the neurosurgeon.

The neurosurgeon claimed that the change in type of tube used was an exercise of appropriate medical judgment. He also denied causation stating that the tube did not cause the infarction. As for the claim regarding informed consent, the neurosurgeon maintained that he had consent because he described the procedures to the plaintiff and told him that he would operate on his skull and place the drain.

The plaintiff also claimed that the hospital violated the jurisdiction’s hospital regulations, which require the hospital to obtain written consent and document it in the patient’s chart before surgery starts. The hospital relied on the neurosurgeon to explain the procedure and then obtain written consent and document it in the patient’s chart. The hospital contended that it did not know what the physician told the plaintiff before surgery and that it relied on the consent form signed by the physician as certification that the physician had described the procedure to the patient. This part of the consent form was not signed by the neurosurgeon who performed the surgery; it was signed by one of his partners more than two months after the surgery. The same partner also signed the operative note and discharge summary, which had been dictated by the operating surgeon’s physician assistant. The signing partner serves as the hospital’s section chair. The plaintiff argued that this partner never examined him and never read any of the operating neurosurgeon’s notes.

Prior to going to trial, this action settled confidentially for $3.25 million, with both the hospital and physician participating.

What this means to you: Generally, it is the physician’s responsibility to describe various treatment options to patients, complete with explanations of the risks and benefits associated with each. This is particularly true in nonemergent situations in which the patient is competent.

"Although the patient presented early morning to the emergency department with an emergency condition, the situation did not call for immediate surgery. In fact, surgery was not preformed until three days later, and so presumably the neurosurgeon had plenty of time to explain the options to the patients and should have had the time to confer with his partners and describe additional options as needed," notes Lisa Winton, RN, LHRM, CPHQ, CHSP, manager of risk management; Gabrielle Smith Morley, RN, LHRM, risk specialist; and Lucy Newell Gurka, RN, risk specialist, all at Tampa (FL) General Hospital. "There was no need for the surgeon to wait until the patient had been sedated to explain his preferred course of treatment to the competent patient’s spouse. Further, when the spouse did protest to the physician’s proceeding with the surgery her husband had not consented to, the physician had a duty to abide by the health care surrogate’s wishes."

Informed consent is an integral component to the delivery of health care. It is the mechanism that ensures appropriate communication between the provider and their patient. "As such, informed consent cannot be delegated to nonmedical staff personnel and should not be delegated to one’s partners. The signing of the informed consent two months after the surgery by the neurosurgeon’s partner appears to be in direct conflict with prevailing state regulations. And, although the partner signed all of the pertinent documentation from consent from to operative notes and discharge summary, it does not seem that he participated in the care of the patient. Interestingly, since the signing partner was also the section chair, it would be interesting to know how the peer review of the case was handled. Finally, hospitals should have policies and procedures in place that pertain to verification that informed consent had been obtained as well to verification of the surgical procedure," adds Winton.

"Finally, as to the adverse outcome, one questions whether or not the physician was credentialed to perform the more complex surgery. And, if he was, the follow up question is how many procedures of this had he performed and what was the associated complication rate," conclude Winton, Morley, and Gurka.

Reference

• Michael and Nancy Strack v. St. Peter’s Hospital and Dr. Bruce Chozick, Albany County (NY) Supreme Court, Index No. 4428/99.