Legal Review & Commentary: Teen-ager dies after tonsillectomy: $9 million verdict in KY
By Jan J. Gorrie, Esq., and Mark K. Delegal, Esq.
Pennington, Moore, Wilkinson, Bell & Dunbar, PA
News: To alleviate his apnea, a 17-year-old boy was admitted to a hospital for a tonsillectomy. The surgery was successful and morphine was administered to address his pain. The morphine complicated his apnea, leading to his death. Plaintiffs successfully claimed that the hospital failed to provide adequate post-surgical monitoring and treatment. The jury returned a $9 million verdict against the hospital and a defense verdict in favor of the named physicians.
Background: The 17-year-old patient was scheduled to undergo a tonsillectomy, or uvulopalatopharyngoplasty. The procedure was designed to partially relieve his apnea, which was aggravated by a tonsil that was too large. While the patient’s obesity contributed to his condition, his otolaryngologist believed that removing the tonsil would mitigate the apnea. The enlarged tonsil interfered with the boy’s ability to breathe and caused him to involuntarily stop breathing, mostly while he was asleep. The patient relied upon his snoring to awaken him, which it did many times during the night. But it also caused him to be drowsy during the daytime. The young man’s doctor arranged to have the surgery performed at a local hospital, using the hospital’s contract anesthesiologists.
The surgery was successful. In the recovery room, the anesthesia team administered morphine to treat the teen-ager’s pain. However, the morphine had an adverse effect on the underlying apnea. While the patient generally depended upon his snoring to wake him when his breathing stopped, the morphine impeded that conditioned, natural response. Since the failure to wake-up could lead to an unhealthy buildup of carbon dioxide, it was necessary to keep the young man awake throughout the recovery process. Morphine has a half-life of approximately two to four hours, so the critical period for full postoperative recovery should have been about four to eight hours.
Over the next two hours, the young man continued to have oxygen and respiratory problems. A morphine-reversing drug, Narcon, was given to the patient to counter the adverse effects. Fifteen minutes after it was administered, the patient appeared to be improving, so the recovery room nurse transferred him from the recovery room to the regular unit. The half-life for Narcon is 20-40 minutes; the transfer took about 45 minutes.
When he arrived in the unit, his parents believed his condition was declining. A nurse assured them that all was well and suggested they go home. After they left, the unit nurses allowed the boy to sleep as the dangerous levels of carbon dioxide continued to rise. Though the Narcon had worn off and the morphine had not, an additional dose of Narcon was not administered or ordered by the anesthesiologist.
In the meantime, a respiratory technician was called in to assist with the patient. Without doctor’s orders — as was the hospital’s protocol — he increased the amount of oxygen the patient was receiving. The patient’s condition continued to deteriorate and the unit nurses contacted the otolaryngologist.
It is unclear exactly what information the nurses shared with the otolaryngologist who operated on the patient, but eventually the nurses and otolaryngologist all contacted a pulmonologist to consult on the case. The pulmonologist attempted to issue a variety of orders to treat the problem, including transferring the patient to an intensive-care unit (ICU) and ordering tests, including an X-ray and an arterial blood gas (ABG) to determine the level of oxygen and carbon dioxide in the patient’s blood.
The specific facts were disputed, but apparently the orders were not followed. When the patient’s monitoring devices indicated that there was an oxygen problem, the nurses administered more oxygen. The plaintiffs successfully contended at trial that the administration of additional oxygen contributed to the carbon dioxide problem and further obscured the fact that a potentially fatal problem was developing.
An hour later, the young man — who had not been transferred to an ICU bed — was in respiratory arrest. A code was called, and the patient was resuscitated. However, a serious hypoxic event had occurred in the interim and 26 hours later, the boy was dead.
The plaintiff parents brought suit against the otolaryngologist and anesthesiology team as well as the hospital. As to the otolaryngologist, the parents claimed that the physician failed to properly monitor their son postoperatively and failed to communicate preoperatively about the seriousness of the teen’s apnea. The plaintiffs claimed that the anesthesiologist should not have administered morphine because the patient was not a good candidate for this drug in light of his apnea. The plaintiffs also claimed that once Narcon was given, someone should have realized it had a half-life of less that half of the morphine and that at least two doses should have been administered instead of one.
The plaintiffs further asserted that the hospital failed to keep the boy awake until the morphine completely wore off and the apnea complication had passed. Specifically, the plaintiffs claimed that a) the patient was prematurely moved from the recovery area, where there was 1-to-1 nurse coverage, to a floor where he could not be as closely watched; b) as alarms continued to sound indicating a problem, the nurses simply turned the alarms off or responded inappropriately; c) the parents were sent home with the admonition not to worry when they could have stayed and cared for their child; d) the nurses and respiratory technician practiced medicine unlawfully by administering oxygen without a medical order from either the attending physician or the pulmonologist; and finally; e) there were repeated delays in the nurses contacting the doctors and, when contacted, the nurses failed to properly advise the doctors about the patient’s condition. The plaintiff claimed that the cumulative events were inexorably linked to the patient’s respiratory distress and ultimate death.
Both the otolaryngologist and the anesthesia team denied negligence and pointed to the errors the hospital nurses made that led to the boy’s death. The defendant physicians further claimed that had the nurses appropriately communicated with them, they would have responded differently.
The hospital said the nurses responded properly and in its defense raised factual disputes regarding the plaintiffs’ characterization of the care provided. The errors in this case, the hospital contended, rested with the doctors who failed to provide the nurses with complete information regarding the severity of the apnea or to give the orders necessary to the treat the boy’s condition and morphine-related complications. The hospital also claimed that the patient’s pulmonary edema was the cause of the respiratory arrest. The plaintiff counterclaimed that up until just before the code was called the decedent could have been saved. The hospital admitted to erroneously turning up the oxygen but maintained that the technical mistake essentially had no effect on the outcome of the case. The defendants also contended that the 17-year-old had a limited life expectancy because of his obesity and enlarged heart.
The plaintiffs countered that the patient’s heart was enlarged, proportionate to his body type, and did not manifest any physical problems.
The jury awarded a verdict of $9 million against the hospital and a defense verdict in favor of the named physicians.
What this means to you: "One of the first things that jumps out at you in reading this case is the allegation that doctors gave orders to the nursing staff that were not followed," states Leilani Kicklighter, RN, ARM, MBA, CPHRM, CHt, of the Kicklighter Group in Fort Lauderdale, FL. "If a nurse feels that any orders are inappropriate or in error, there are standards of practice that govern how to address the orders. Doctor’s orders must be carried out unless canceled or discontinued. To not carry out orders given by a doctor is a deviation from accepted practice standards."
Should a nurse feel the orders given are not appropriate or are in error, Kicklighter recommends the following steps be taken as a matter of course:
- Speak to the ordering doctor.
- Speak to the pharmacist if the order involves a drug; the pharmacist can then speak with the doctor.
- If, after speaking with the doctor, there is no acceptable resolution, speak to the nursing supervisor on duty.
- If the supervisor agrees, it should be taken to the next step up the chain of command, to the department chief/chair and to the director of nursing.
For a nurse to disregard doctor’s orders is potential grounds for disciplinary action by not only the nurse’s employer but also by the nurses’ state board of nursing; and even if not included in the hospital’s policies, the nurse may still have the professional obligation to take action and raise issues. However, most would advise having such policies and procedures in place and providing education on the issue.
To that end, "risk managers should review standing practices and policies and procedures regarding the process for addressing orders given by a doctor that are felt to be inappropriate by the nursing staff. The risk manager should make sure to emphasize how to handle such matters in written educational materials and inservice program presentations. In addition, risk managers should advise nursing and supervisory staff that they are available, 24/7, for consultation in such situations," adds Kicklighter.
Just as nurses should voice their concerns when they don’t agree with doctor’s orders, all members of the health care team should communicate with each other. Communication among health care providers is key to successful outcomes — even when the case seems minor or routine. Even the most mundane procedures can become untoward incidents if allied health professionals and physicians don’t talk to each other and take things for granted.
"This case brings to the forefront an issue that faces health care workers every hour of every day, and that is COMMUNICATION between caregivers," Kicklighter asserts. "In this case, it is even more complicated because much of the communication scrutinized at trial was conducted by telephone, and there is no proof of what information was actually given by the nurses to the various doctors or what was received in return from the doctors to the nurses. This is always a ticklish situation, especially if the conversations are at night when one or other of the parties may not be at their most alert state. This is of such an important nature that some hospitals have actually set up devices to record such phone conversations. Not only does this provide clear information regarding what was transmitted by each party, it also serves as a quality improvement modality. In this case, such a system would have provided the information regarding what information the nurses gave the doctors, whether he or she asked questions to clarify the situation, and exactly what orders were given in response to the given information. Documentation in the medical record is a good backup, but again the doctor may say, as in this situation, that all the important information wasn’t conveyed or that the physician’s orders were not recorded. And, much to the facility’s risk manager dismay, it seems that the doctors were believed in this instance given that the jury exonerated them."
Documentation can often make or break you once litigation is initiated, Kicklighter says. These questions occurred to her:
• Was there extensive pre-surgical evaluation and documentation of the patient’s apnea? Specifically regarding his reliance on his snoring to awaken him from the apnea state.
• Was the documentation in the postoperative orders regarding the need to keep the patient awake until he had fully recovered? And what was the definition of "fully recovered" in this situation?
"However in this case, regardless of where — if anywhere — the patient’s underlying complication was documented, it seems that the health care providers had the opportunity to overcome any documentation deficiencies and appropriately care for the boy after the morphine was administered, but they failed to effectively communicate regarding his course of treatment following the incident," observes Kicklighter.
It would probably serve most risk managers well to review this case chronologically posing the following questions to be sure that the circumstances are not ripe for a similar scenario to occur in their organizations, Kicklighter says:
1. What is the process for identifying patients as "at risk" or "high risk" of surgical complications, as it seems this patient should have been labeled but was not.
2. If a patient is not initially deemed "at risk" at the time surgery is scheduled or initiated, did the facility have policies and procedures regarding the postoperative care of patients that become "at risk" — particularly as it relates to the care by the anesthesiology teams, which seems as though should have been done after the morphine was administered and adverse effects became known?
3. How long was the attending surgeon to remain on site post-surgery according to the hospital privileging rules? It seems he was no longer at the hospital when the orders to transfer the patient from the recovery room were executed. Subsequently, who determined when it was time for the patient to be moved. Namely, did a physician evaluate him? And, if not, then what criteria were used by whom to make that judgment call?
4. What are the hospital’s rules regarding the length of time an anesthesiologist or other member of the anesthesia team is to remain with the patient postoperatively, and does this change if the patient is experiencing complications?
5. Where was the anesthesiologist during the apnea spells prior to the respiratory arrest? Were there policies and procedures in place to allow the nursing or respiratory techs to seek medical direction from an in-house physician if the attending physician is only available by phone, and what were the policies and procedures for documenting telephone conversations with the attending and consulting physicians not on site?
In addition to the issues of nursing practice standards, communication, and documentation, "since the anesthesiology group was on contract to this hospital, this case raises the very important risk exposure that may lurk in such contracts. Ideally, contracts with physician groups should provide that the group and each individual physician and other allied health professionals employed by the group carry a sufficient limit of professional liability insurance coverage and that there is a hold harmless agreement as well as an indemnity clause contained in the contract. In addition, the contract should clearly state that neither the group nor individuals who make up the group are agents of the hospital. The risk manager should be thoroughly knowledgeable as to the criteria in his or her respective state as to what constitutes an agent and work with the hospital’s legal counsel and administration to assure that all loss prevention steps are taken to prevent any contractors from being held as an agent of the hospital whenever possible, adds Kicklighter.
"Lastly, organizations should re-examine their parental visitation policies and procedures based on the outcome of this case. Parents can be of great assistance to the nursing staff; and from the parents’ view, they are often more comfortable remaining with their child, given the choice. As seen in this instance, not only might the parents’ presence have saved their son’s life, it more than likely factored into the jury’s large verdict," adds Kicklighter.
"Bottom line, it is probably not enough to simply have all of the right policies and procedures in place to dictate who should do what and when if orders aren’t followed and the communication culture and systems are faulty," concludes Kicklighter.
- Dudley vs. Baptist East, et al., Jefferson County (KY) Circuit Court, Case No. 97 C15760.