What at first seemed the tragic but otherwise unremarkable death of an elderly woman, comedian Joan Rivers, has turned out to be preventable and the result of malpractice, according to a federal report and malpractice attorneys.
The Manhattan clinic that treated the 81-year-old celebrity made several errors, including failing to identify deteriorating vital signs and providing timely intervention, according to a report by the Centers for Medicare & Medicaid Services (CMS). (To access the report, go to http://bit.ly/1ys2U3S.) Rivers died Sept. 4, 2014, a week after an appointment at Manhattan’s Yorkville Endoscopy clinic.
CMS noted these errors could have contributed to Rivers’ death:
failing to identify deteriorating vital signs and provide timely intervention;
failing to record Rivers’ weight prior to the administration of medication for sedation;
failing to consistently document the dose of propofol, a sedative, administered;
failing to obtain Rivers’ informed consent for each procedure performed;
failing to ensure that she was cared for only by physicians granted privilege in accordance with the clinic’s bylaws;
failing to abide by its own policy by allowing a photograph to be taken of a surgeon and Rivers while she was under sedation.
The string of deficiencies does not surprise Jamie Koufman, MD, an acid reflux specialist and director of the Voice Institute of New York in New York City. She is an expert in the type of surgery that Rivers was undergoing, and she says standards of care are insufficient. The standard of care clearly was not met in the Rivers case, Koufman says, but she says patients are at risk even when the standard is met. Koufman says too many physicians offer complex surgery in an outpatient setting without the proper training, equipment, or precautions.
The Rivers case shows the longstanding problem of inadequate preop examinations, says Harry Nelson, JD, partner at Nelson Hardiman in Los Angeles. Some surgeons aren’t making sure “all of the ‘i’s’ are dotted and ‘t’s’ are crossed,” Nelson says. Obtaining vitals for all patients and screening them thoroughly for risk issues is time-consuming and not well-reimbursed, he says.
Nelson’s firm has represented plaintiffs in several cases of patient deaths and injuries that probably were preventable with better compliance on pre-surgical review. There have been proposals for legislative solutions to the issue, Nelson notes.
Many doctors are concerned only with ensuring the patient is hemodynamically stable, Nelson says. “Also, surgery center owners must insist on more compliance policies and procedures to cover the need for better pre-ops,” he says.
However, the insufficient pre-op review was not the only problem, notes Kenneth D. Powell Jr., JD, a partner in the Medical Malpractice Group at the law firm of Weber Gallagher in Philadelphia. It appears that one or more of the physicians were not properly credentialed, and the institution is always responsible for proper credentialing, he says.
“There are inconsistencies in the documentation concerning the use of propofol, and the importance of accurate documentation can never be emphasized enough,” Powell says. “Failing to accurately record a patient’s weight exposes all healthcare providers involved, particularly when the weight is needed to calculate an appropriate dose of medication.”
Citing reports that the physician performed a procedure other than what the patient consented to, Powell points out that in most jurisdictions this is a technical battery and the physician is liable even if the patient is not harmed. In Pennsylvania, the institution is not responsible for the battery, but that law might not be the same in other jurisdictions, he says.
“Based on reports in the media, it appears that the clinic had ongoing and systemic problems that were not corrected. Because they were not corrected, this adds to the exposure in the Rivers case,” Powell says. “The publicity tends to bring other potential claimants to the forefront who will be able to use these system failures to their advantage.”
Yorkville Endoscopy issued a statement in response to the CMS report and noted that it already has “submitted and implemented a plan of correction that addressed all issues raised. The regulatory agencies are currently reviewing the corrective plan of action and have been in regular contact with Yorkville. In addition, the physicians involved in the direct care and treatment referenced in the report no longer practice or provide services at Yorkville.”