Family members are awarded $7.9 million after botched gallbladder procedure causes death
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 24-year-old woman, sought treatment from a hospital and was complaining of abdominal pain and related stomach problems. After admission, a physician prepared to perform an endoscopy to diagnose the stomach problems. An anesthesiologist gave the patient propofol as a sedative. However, during the procedure, the patient regained consciousness with the laryngeal mask airway (LMA) tube, used to keep her airway open and help pass oxygen into her lungs, still in her throat. Disoriented from the sedation, on awakening, the patient panicked and began to flail about. She gasped for air and screamed in pain for 20-30 seconds before falling unconscious. The patient went into acute respiratory failure and suffered cardiac arrest twice. She was unable to be resuscitated after the second arrest. The patient’s family brought suit against the hospital, the anesthesiologist, and the anesthesiologist’s practice. The family claimed that the patient’s medical treatment was negligently performed. The defendants claimed that the care provided was appropriate. The jury found the physician and hospital liable and awarded the patient’s family $7.9 million in damages.
Background: In this matter, the patient was a 24-year-old mother of a 10-month-old son and was a local healthcare worker. She had been suffering from severe stomach problems for a few months and eventually sought treatment at a hospital in September 2009. The patient was scheduled to undergo an endoscopy by a surgeon to diagnose the stomach problems. Before the procedure, an anesthesiologist gave the patient propofol, a short-acting medication used to help relax patients before and during general anesthesia, or to provide moderate sedation during a minor procedure such as an endoscopy. The patient was not under general anesthesia. While the procedure was underway, the patient awakened from the propofol and regained consciousness. She still had the LMA tube stuck down her throat and began thrashing about on the operating table while in a panic. Witnesses stated that she was gasping for air and screaming in pain for 20-30 seconds before falling unconscious again. Her situation deteriorated quickly after this incidence. The patient went into acute respiratory failure and was airlifted to a nearby hospital. At this hospital, she suffered cardiac arrest, but she was successfully revived. However, she did not survive long. The patient became extremely sick on a respirator, went into cardiac arrest for a second time, and died as a result.
The patient’s family brought suit against the anesthesiologist, his practice, and the hospital, The family alleged that the anesthesiologist was negligent during the procedure and the hospital was responsible for the negligence as well. The plaintiff’s experts testified that the anesthesiologist’s failure to intubate the patient before beginning the procedure was action falling below the standard of care. Intubation likely could have saved this patient’s life, even despite the shortcomings of the anesthesia. This opinion was largely based on the fact that the patient was 5-foot, 2-inches tall and weighed 270 pounds. Given the patient’s significant weight, the plaintiff argued that a general anesthetic should have been used in addition to or instead of the propofol, as well as the endotracheal tube, to decrease the likelihood of complications. The plaintiff argued that because the anesthesiologist failed to perform these safety measures, the patient suffered catastrophic injuries and death. The defendants attempted to argue that the care provided was appropriate given the circumstances, but the jury disagreed. In a unanimous verdict, the jury found the anesthesiologist and hospital liable, and it awarded $7.9 million in damages.
What this means to you: The primary issue in this case was whether the anesthesiologist fell below the standard of care in sedating the patient for the procedure. Although the procedure was interrupted, there was no indication that any part of the procedure itself caused the injuries. Rather, the sole cause of injury was the patient awakening from the sedation, which was caused by the anesthesiologist’s reliance on propofol and lack of consideration for the patient’s current medical condition. In this case, the patient was obese. While obesity increases fat and lean masses, the percentage of fat tissue increases more than lean mass does. Drug and anesthetic dosages, including propofol dosages, need to be calculated based on the total body weight of the patient, so a patient who is obese must be given special consideration for proper medication dosage. Physicians must be sure to carefully take into account the patient’s past and current medical condition while evaluating the proper course of treatment for any patient. In this case, the anesthesiologist improperly calculated or delivered the dosage for the sedation. The sedation wore off mid-procedure, which allowed the patient to wake disoriented. Another consideration should be that the anesthesiologist bases his or her determination of drug dosage on the patient’s actual weight, not the stated weight. It is not uncommon for obese individuals to be unaware of, or in denial of, their actual weight. Many preop nurses will simply ask the patient what he or she weighs rather than have the patient stand on a scale during the admission assessment. Hospitals should ensure that physicians have access to the proper medical files for physicians to review a patient’s history, but for conditions or statuses that are obvious upon casual observation, such as a patient’s obese status, a physician should be able to recognize this status without any assistance.
Physicians and hospitals, while hoping for the best, should be prepared for the worst. Knowing what to do in the event treatments and procedures go wrong is a critical part of the job, particularly in a hospital environment where events happen quickly and seconds can make the difference between life and death. In this case, the anesthesiologist prepared the patient for the procedure, but he did not consider and prepare for what would happen if the propofol wore off, as it did. Had the anesthesiologist considered this, he could have prepared the endotracheal tube to decrease the chance of complications. Although redundancies are not always necessary, they can provide an extra layer of protection when a patient’s condition is questionable.
This case also illustrates an important point regarding state tort reform laws. Many states have passed their own versions of tort reform, which can set caps for damages awards. These reforms, largely based on personal injury and medical malpractice cases, were enacted for the same reason that this supplement exists: to protect physicians and hospitals from enormous verdicts (in addition to lowering medical insurance costs). Such reforms have been and remain an issue of significant political contention. In California, for example, the Medical Injury Compensation Reform Act of 1975 caps non-economic damages (which include damages for pain and suffering, and loss of consortium) at $250,000, among other effects. The plaintiff’s bar has long argued that this cap is so restrictive as to make it economically impractical for lawyers to bring many malpractice cases that otherwise have merit. In November, California voters will weigh in on a ballot measure to raise the cap to current inflation standards (slightly more than $1 million). The measure also seeks to crack down on drug and alcohol abuse by physicians. It requires testing and reporting of positive tests to the medical board.
As applicable to this case, Michigan’s version of tort reform requires the courts to reduce any damages awards to the set caps: For a medical malpractice case, such as the one here, the court reduces non-economic damages, which includes permanent disability, disfigurement, and the vague pain and suffering, to less than $1 million. This process happens after the jury already has announced its verdict, and many individuals are not aware that this process occurs. Juries can award significant amounts for "pain and suffering" because any calculations proposed by the plaintiff can be inflated by a sympathetic jury. However, if the state has a cap in place on non-economic damages, the jury’s award will be substantially nullified. Thus, while the jury awarded a total of $7.9 million, this patient’s family will receive a significantly reduced amount, because a large portion of that total award was likely non-economic damages.
- Circuit Court of Wayne County, MI. Case No. 12-004153-NH. June 9, 2014.