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By Damian D. Capozzola, Esq.
Law Offices of Damian D. Capozzola
Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services (2004-2013)
California Hospital Medical Center
Tim Laquer, 2015 JD Candidate
Pepperdine University School of Law
News: The patient, a 44-year-old woman, underwent a routine, outpatient surgical procedure to relieve sinus congestion at a surgical center. The surgeon called for an injection of 1% lidocaine, as well as cotton balls soaked in Afrin to control bleeding in the patient’s nose. Due to a miscommunication, the two medications were mixed up, and the surgeon injected the patient with the incorrect medication, which caused the patient’s heart rate to drastically drop. Despite finding out this mistake, the surgeon continued, and further improperly used labetalol in an attempt to stabilize the patient’s high blood pressure. The patient went into cardiac arrest, was resuscitated, but suffered brain damage. The patient and her husband sued and alleged that the surgeon was negligent and that the surgical center was at fault for knowing that the surgeon failed to follow safety procedures. The surgeon and center denied wrongdoing. The jury found both liable and awarded $5.1 million in damages.
Background: In this matter, the patient was a 44-year-old woman who underwent a routine, outpatient nasal surgery to relieve sinus congestion. Prior to the procedure, the surgeon called for an injection of 1% lidocaine with epinephrine for local anesthesia, as well as cotton balls soaked in Afrin, a topical vasoconstrictor, to control bleeding in the patient’s nose. The circulating nurse poured Afrin into an unlabeled cup and did not relay the preparation to anyone else in the operating room. A second nurse then drew the Afrin, believing it to be the requested lidocaine, into an unmarked syringe, which the surgeon injected into the patient’s nasal cavity. After the injection, the patient’s heart rate dropped to 36. A nurse anesthetist administered glycopyrrolate, which brought up the patient’s heart rate to 80.
The surgeon asked for more 1% lidocaine, but a nurse responded that only 2% lidocaine was available, at which point the surgeon discovered that the original syringe was Afrin rather than lidocaine. Information revealed at trial showed that this injection of 6-7 cc of Afrin was a hundred times more than the amount that typically is recommended. The surgeon decided to continue with the elective surgery, despite finding out this information. Anesthesia still was required, so the surgeon proceeded with injecting the patient with lidocaine, which caused the patient’s heart rate to spike to 140 and blood pressure to rise to 260/150. The surgeon responded to this situation by administering the drug labetalol. However, this decision was incorrect: The labetalol bottomed out the patient’s blood pressure, which caused cardiac arrest. The patient was transported to a nearby hospital and resuscitated there, but the damage already was done. The patient suffered from brain damage and impaired cognitive abilities, vision, memory, and speech, and these injuries were expected to worsen with age.
The patient and her husband brought suit and alleged that the surgeon was negligent by failing to stop the procedure, particularly after discovering that there was no advantage to continuing this elective procedure. At this time of discovery, the surgeon could have aborted the procedure with no negative consequences, while continuing posed potential unknown consequences. The patient claimed that the medication overdose and error were negligent, but the real damage came from persisting with the surgery while knowing about these medication mistakes.The patient alleged that the physician should have postponed the surgery. Additionally, the patient alleged that, based on the past actions of the surgeon and those in his practice, the hospital leaders knew that safety procedures were not being followed properly and that this incident was just another time that the surgeon failed to abide by proper procedures. The surgeon and center defended on the basis that the judgment decision to continue the procedure was correct, based on information from the nurse anesthetist. Furthermore, the defense attempted to argue that the lidocaine injection was minimal with no meaningful effect on the patient’s outcome, and that the damage was caused by an unforeseen reaction to the Afrin. The jury rejected these defenses and found the surgeon and center liable for 38.5% and 61.5% respectively. The total damages were $4.6 million for the patient and $500,000 for the patient’s husband for loss of consortium. However, a confidential high-low agreement in place reduced this verdict to an unknown amount, as an attorney stated that the $5.1 million exceeded the high value.
What this means to you: This case serves as an illustration of the need for communication among physicians, nurses, and anyone involved in a surgical procedure. It is almost a guarantee that multiple individuals are involved with any single patient’s care, and these parties must be kept informed of what the others are doing. Thus, communication is extremely important to ensuring a patient’s proper treatment. Proper communication can also serve to eliminate waste or inefficiency in a hospital setting. It will ensure that preparations and procedures, such as pre-surgery measurements or medication administration, are not repeated unnecessarily or dangerously. When parties do not communicate, these procedures might be repeated, especially because patients might not speak up or even know that this overlap is happening. Hospitals should train physicians, nurses, and staff to emphasize teamwork and foster communication. Such training can help a hospital if litigation arises which alleges that the hospital was negligent, because it shows that the hospital took affirmative steps to properly educate its employees.
Another problem revealed in this case is what can go wrong when medications and containers are not properly labeled. Giving a patient the wrong medication, or wrong dosage, can have serious consequences, as seen in the case here, in which the patient went into cardiac arrest. Hospitals and surgery centers should instruct their surgeons and nurses to make sure to properly label their instruments and containers. In many circumstances unlabeled containers and syringes are prohibited, and unless the physician is immediately going to use a medication he or she draws up into a container or syringe, there should be a label placed on both. In addition, it is critical that when a doctor gives a verbal order for a medication to a nurse, the nurse gives a "read back" or gets a verbal confirmation of the drug and dose ordered.
Training, again, can come into play with hospitals teaching their employees about these marking procedures. Physicians and nurses must make sure to use the correct drug under the circumstances. If it is unknown how one drug will interact with another, caution must be exercised. According to a 2006 statistic from the Institute of Medicine, medication errors injure 1.5 million Americans each year, which costs $3.5 billion in losses. These errors can occur at any step of the process: prescribing, transcribing, dispensing, or administering the medication. Administration errors account for a large portion, 26% to 32%, of total medication errors. Because nurses administer most medications, hospitals must ensure that their nurses and staff are properly trained regarding medication administration procedures. Packaging for many drugs looks similar, so hospitals and providers should make sure that all medications are provided in clearly labeled unit-dose packages. Similarly, many medications sound alike as well and might be confused based on this simple mistake. Reports to the Food and Drug Administration (FDA) about name confusion include the following:
• Celebrex (celecoxib) for arthritis and Celexa (citalopram) for depression;
• Zantac (ranitidine) for heartburn, Zyrtec (cetirizine) for allergies, and Zyprexa (olanzapine) for mental conditions.
The FDA carefully reviews drug names before approval and tracks reports of errors due to drug name confusion, but this area still is a potential hazard for hospitals. Clarification about the correct medication is essential to ensure that the patient doesn’t receive a dangerous or superfluous medication.
If something goes wrong, and there is still an opportunity to abort without further harm, then stopping a procedure might be the best idea. Stopping the procedure is especially a good idea for an elective procedure, such as the one here. Hospitals must ensure that procedures are done only when necessary and under the proper circumstances. When those circumstances change, even last minute, hospitals and surgeons should be prepared to think critically about whether to continue. The surgeon in this case would have done well to consider options before going through with the elective surgery after a medication mistake. Hospitals who allow unnecessary procedures to occur might be found liable if proper supervision and training would dictate that these procedures be delayed or canceled altogether.
Parties involved in medical malpractice suits have several options available to them to limit potentially enormous verdicts that often are widely publicized. "High-low" agreements are one such option that allows parties to agree prior to trial to a minimum and maximum amount of recovery. Plaintiffs are guaranteed the minimum, low, amount regardless of a small verdict or finding for the defense, while the defendants are protected from exorbitant verdicts by the high amount, which sets a cap, limiting the plaintiff’s recovery amount. Hospitals and providers should consider discussing such high-low agreements with their counsel and with plaintiffs. These agreements are especially useful when it appears that liability is a possibility, and they can be used to limit damages. High-low agreements have benefits for plaintiffs as well, since they are guaranteed to recovery some money regardless of the jury’s determination, thus eliminating some of the gamble of going to trial. This security measure means that discussions can be beneficial to both sides. The high-low agreement here helped the defendant center reduce its overall loss.