Legal Review & Commentary
Post-surgical drugs get the blame in $500,000 verdict
News: After undergoing brow-lift plastic surgery, a young woman blamed her subsequent delirium on the adverse effects of the post-surgery drugs she was prescribed. Three days after surgery, she was treated at an ED for anxiety. Following discharge, she attempted to drown herself and her 6-year-old child. The woman claimed that she should have received appropriate treatment by the plastic surgeon, ED doctor, and the hospital, and also that if more suitable and timely care had been provided, the harm she inflected upon herself and her child would have been avoided. She was awarded $500,000, which was reduced by 40% for her own negligence.
Background: The plaintiff, 24, underwent elective endoscopic brow-lift surgery. The office procedure was performed by a plastic surgeon. Her anesthetic and pre-anesthetic agents included droperidol. After the procedure, the patient received narcotic analgesics that included Norco. She was discharged three hours after the successful procedure was performed.
Immediately following surgery, the patient claims she began to experience agitation, anxiety, and motor restlessness, symptoms that continued after discharge from the surgeon's office. She called the physician's office from home and reported her distress and symptoms to a nurse. She also claimed that the plastic surgeon called her at home the next day, but the medical records contained no notation of the conversation.
The patient claimed that her symptoms worsened and she eventually experienced drug-induced delirium. On the third postoperative day, the plaintiff went to a hospital ED, where she was treated for anxiety and breathing difficulties. During that visit, she failed to tell the treating physician that she had undergone surgery three days prior and that she was on post-surgical medications. She was discharged home and claimed to have reported the ED visit to the plastic surgeon.
After being discharged from the hospital, the patient picked up her 6-year-old child from school and attempted to drive to a beach with the intention of drowning herself and her daughter. On the way to the beach, she became disoriented. When she was unable to find her way to the beach, she stopped the car on an overpass, which she jumped from with her daughter in her arms. They were injured in the fall, but neither was killed. The plaintiff sustained a liver laceration and an elbow fracture. She was charged with attempted second-degree murder.
A psychiatric evaluation concluded that she suffered from a substance-induced delirium at the time of the jump. Based on the diagnosis, she was able to plead not guilty to the crime by reason of mental disease. She brought suit against the plastic surgeon, emergency physician, and the hospital, claiming that they were negligent in failing to properly evaluate and treat her. She claimed that in each of the two times she contacted the plastic surgeon's office, she should have been referred for hospitalization. The plaintiff conceded at trial that she did not tell the emergency physician or anyone at the hospital about her plastic surgery or the post-surgical drugs she was taking, and the hospital and the emergency physician were subsequently dismissed from the case. The plastic surgeon claimed that he only spoke with the plaintiff once after surgery and that drugs used during the surgery and prescribed afterwards could not have caused the patient's delirium. The plastic surgeon contended that the suicidal behavior was not consistent with delirium because she exhibited decision-making ability and the ability to operate a motor vehicle.
A $500,000 verdict was returned against the plastic surgeon. However, this amount was reduced by the finding that the plaintiff was 40% at fault for not disclosing the fact that she had undergone plastic surgery and was on medication during her visit to the ED.
What this means to you: "One always has to remember that you take the 'patient as you find him or her,' which is true whether the presenting diagnosis is physical or mental. Thus, it would behoove the plastic surgeon to institute a formal evaluation program prior to accepting anyone for elective surgery. Part of the evaluation should be a thorough review of the medical history of prospective patients, particularly past reaction to any drugs that may be used. Another part of the evaluation should be a psychological assessment of the prospective patient to assure a thorough understanding of the procedure, the desire for the procedure, and an assessment of the ability to comply with discharge instructions," notes Ellen L. Barton, JD, CPCU, a risk management consultant in Phoenix, MD.
"In addition to a pre-surgical evaluation program, the plastic surgeon should also adopt a more formal follow-up program, especially given that so many plastic surgery procedures are done on an outpatient or same-day surgery basis where patients cannot be monitored for any significant length of time. Thus, in addition, to providing a written set of discharge instructions, follow-up telephone calls should be made to patients on post-op day one and three or, whatever combination is deemed appropriate given the procedure, patient, and other pertinent factors," adds Barton.
"Had post-op calls been made, or as in this instance when the patient called the plastic surgeon's office after her surgery and spoke with a nurse, complete documentation of the calls and any necessary follow-up steps should be instituted. It's not enough to make the calls if there's no follow-through on the follow-up," says Barton. "In this case, if the nurse had any concerns about the patient, the call should have been referred to the surgeon. And it appears from the conflicting stories that he was not made aware of any issues or concerns identified by staff.
"When the patient does not provide relevant information to health care providers, which in this case were the emergency room nurse and physician, it is difficult to hold those health care providers accountable for consequences over which they had no control. While physicians and nurses can try to elicit patients' symptoms, practitioners are not mind readers. The only thing that the emergency department personnel could have done differently was to question her more thoroughly regarding recent activities, surgeries, and medications. But even then there is no guarantee that the patient would have said anything different. Thus, documenting the information exchange is the only risk management tool available to health care providers in the ED in this situation," notes Barton.
"The issue of sentinel events as applied to this case is interesting. First, the surgery was performed in a physician's office; thus, it is assumed that the setting was not JCAHO accredited; therefore, the JCAHO sentinel event policy would not apply. Second, with regard to the hospital emergency room and assuming that the facility is JCAHO-accredited, this situation seems to fall within the cracks. As noted earlier, the JCAHO sentinel events policy provides that suicide 'of any individual receiving care, treatment or services in a staffed around-the-clock care setting or within 72 hours of discharge' is considered a 'reportable' event. The patient, however, did not commit suicide; she merely lacerated her liver and fractured her elbow. Therefore, it would appear reasonable to conclude that this was not a 'reportable' event since the injuries did not occur on hospital premises," Barton explains.
- Suffolk County (NY) Supreme Court, Index No. 766/01.