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: A patient undergoing thyroid surgery was accompanied to the hospital by her sister and daughter. After surgery and upon transfer to the medical-surgical unit, the patient began to struggle with her breathing. The patient’s sister and daughter observed the surgeon and a team of nurses work on the patient for more than 30 minutes, during which time the patient’s condition continued to deteriorate until the patient stopped breathing and lost her pulse, which led to permanent brain injury. The patient died 10 days later when life support was withdrawn.
Background: On Sept. 26, 2008, a patient underwent surgery on her thyroid gland. The patient’s sister and daughter accompanied her to surgery. At approximately 6:45 p.m., the patient was transferred from a post-anesthesia care unit to a medical-surgical unit. A nurse, observing that the patient’s breathing was “noisy” and possibly obstructed, called for an evaluation by the hospital’s rapid response team (a respiratory therapist and a nurse from the intensive care unit), which arrived in three minutes and suctioned the patient’s mouth. The patient’s surgeon arrived roughly 10 minutes later, tried to reposition her, and suctioned her mouth and nose. While the bandages were being removed and the sutures on the patient’s incision were being removed to relieve pressure, the patient stopped breathing. The surgeon called a Code Blue at 7:23 p.m., which summoned a team of doctors and ancillary personnel to deal with the emergency. The patient lost her pulse for some minutes and, as a consequence of her blocked airway and subsequent anoxia, suffered permanent brain injury. The patient was transferred to the intensive care unit, but died 10 days later when she was removed from life support.
The patient’s daughter saw her mother immediately after surgery while she was on a gurney waiting to be brought to her room. She later testified that her mother “didn’t look herself,” as her skin appeared gray, she was sweating, and she appeared to be very uncomfortable and in distress. The patient’s daughter also stated that she observed that her mother could not speak and was making a gurgling sound when she breathed. After the initial suctioning, the patient’s daughter thought her mother still appeared to be uncomfortable, and she requested that the nurse summon the surgeon because her condition was not improving. When the surgeon arrived, the patient’s daughter watched him begin to examine the site of the surgery. The daughter then saw her mother’s eyes roll back and her arm go up, and she heard the surgeon call a Code Blue. The daughter was frustrated and upset because she felt there was no sense of urgency among the staff to determine why her mother was in distress. She thought that the nurses and others were not moving quickly enough. The patient’s sister gave similar testimony. Both were extremely upset by the developments they observed, especially given the highly adverse outcome.
The patient’s daughter and sister, along with another daughter of the patient who had not observed the developments immediately after the surgery, filed a complaint for damages against the surgeon and the hospital. They alleged causes of action for wrongful death and negligent infliction of emotional distress. Prior to trial, the plaintiffs settled their claims against the surgeon, and the settlement was found to be in good faith. The case proceeded to trial against the hospital. At the conclusion of the trial, the jury awarded the patients’ daughters $1 million on their wrongful death claims, which was an amount later reduced pursuant to state medical malpractice limitations. The jury awarded the patient’s daughter $175,000 and the patient’s sister $200,000 on their claims for negligent infliction of emotional distress based on what they observed at the hospital. On appeal, these awards for negligent infliction of emotional distress were upheld.
What this means to you: State laws vary, but as a general rule there are three requirements that a plaintiff must satisfy to recover on a claim for negligent infliction of emotional distress to a bystander:
- the plaintiff must be closely related to the injury victim;
- the plaintiff must have been present at the scene of the injury-producing event at the time it occurred and then be aware that it was causing injury to the victim;
- as a result, the plaintiff must have suffered serious emotional distress.
There is no dispute that the daughter and the sister were closely related to the patient and that they were with the patient from the time she began exhibiting difficulty breathing until her surgeon called the code. The hospital’s lawyers argued that there is no substantial evidence, however, that the sister and daughter were aware at that time that the defendant’s negligence was causing injury to the patient.
This argument was rejected. The patient’s daughter and sister were present when the patient had difficulty breathing following surgery. They observed inadequate efforts to assist her breathing, called for help from the respiratory therapist, and essentially ordered him at one point to suction her throat. They also requested hospital staff to call for the surgeon to return to the patient’s bedside to treat her breathing problems. These facts sufficed to demonstrate that the patient’s sister and daughter were contemporaneously aware of the patient’s injury and the inadequate treatment provided to her by the defendants.
The lessons from this case are that bedside manner matters. The patient’s sister and daughter fixated on their impression that there was a lack of urgency to determine what was happening to the patient and to intervene. Whether that lack of urgency was the situation or not, it was their impression. It almost certainly drove a significant portion of their decision to file suit. Also, many providers might not be aware that a family member observing treatment might subsequently be a plaintiff in a lawsuit alleging that the manner of treatment negligently caused emotional distress to that family member. Removing family members from difficult treatment situations might not only spare the family members a lifetime of painful memories from watching the ultimate demise of a loved one, but it also might avoid the prospect of liability, whether warranted or not.
Finally, while it would have been appropriate for a staff member to ask family to leave during emergencies to allow response teams access to the patient and the necessary equipment required, the decision to place the patient on a non-monitored unit after thyroid surgery might have been a bigger problem. It seems that the staff members were unable to recognize post-thyroid surgery complications such as bleeding into the neck causing swelling and airway compromise.
Noisy breathing is a post-anesthesia warning that there is an obstruction. It should not be the responsibility of the family to call for help. The best surgeons will tell you that their practices and outcomes are only as good as the postoperative staff. All the efforts of the surgeon are for naught if the caregivers are not trained to handle untoward events.
- Superior Court of Alameda County, CA. Case No. RG09478812. July 11, 2013.