By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola
Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services
California Hospital Medical Center
News: In 2012, a 52-year-old woman was in an automobile collision and was taken to a hospital. A CT scan indicated that the patient suffered serious injuries, which included three spinal fractures, three fractured ribs, bruises to her brain, air in her cervical spine, and fluid around her lungs. Several hours later, the patient complained of numbness in her left calf. She also was unable to lift her legs due to her pain. After obtaining informed consent, two neurosurgeons at the hospital operated on the patient. When the surgery was completed, the patient was paralyzed from the chest down. She sued the hospital and her treating physicians. The lawyers for the patient alleged that the surgeons should have used intraoperative neurophysiological monitoring during the surgery. Her lawyers argued that if the surgeons had used this monitoring equipment, they would have been able to detect changes to the neurological system during the surgery, which could have prevented or mitigated her injury. After a trial, the jury found in favor of the hospital and the treating physicians.
Background: In 2012, a 52-year-old woman was a passenger in a car that was struck by two other vehicles. She was taken by helicopter to the hospital. At the hospital, the treating physicians performed a CT scan on the patient. The CT scan revealed that the patient had suffered several serious injuries: three spinal fractures, three fractured ribs, bruises to her brain, air in her cervical spine, and fluid around her lungs.
The patient was examined by a neurosurgeon at the hospital. The neurosurgeon came to the conclusion that there was no immediate need for surgery. Hours later, however, the patient started complaining of numbness in her left calf. In addition, the patient stated that she could not lift her legs because the pain was too great.
After consulting with the patient’s husband and obtaining informed consent, the neurosurgeon decided to perform spine stabilization surgery on the patient. She and another neurosurgeon spent about five hours operating on the patient. When the patient awoke from the surgery, she was paralyzed from the chest down, with some use of her arms and hands.
The patient sued the hospital and its physicians for medical malpractice. She sought damages in excess of $20 million. Her lawyers argued that the neurosurgeons should have used intraoperative neurophysiological monitoring during the surgery. The lawyers for the patient argued that if the neurosurgeons had used this form of monitoring, they would have detected changes to the patient’s neurological system during the surgery. By using this form of monitoring, the surgeons would have been able to take the necessary steps to prevent, or at least to mitigate, the neurological damage that led to the patient’s paralysis, the patient’s lawyers argued.
The lawyers for the hospital and surgeons argued that the surgeons did not violate the applicable standard of care by deciding not to use intraoperative neurophysiological monitoring. The lawyers for the defense called expert witnesses who explained that this sort of monitoring would be appropriate for surgery on the spinal cord. But because the neurosurgeons were operating on the vertebrae, and not on the spinal cord itself, the expert witnesses explained that the surgeons properly determined that it was not necessary to employ intraoperative neurophysiological monitoring. They explained that the appropriate standard of care does not require the use of this monitoring during the patient’s surgery in this case.
After a trial, the jury found in favor of the hospital and physicians. The jury concluded that the surgeons had not violated the appropriate standard of care by deciding not to use intraoperative neurophysiological monitoring.
What this means for you: This case illustrates that although healthcare practitioners should employ all procedures that are necessary and appropriate, the law does not require practitioners to employ every single possible procedure that is available. The mere fact that the surgeons could have used intraoperative neurophysiological monitoring during the patient’s surgery does not necessarily mean that the surgeons should have employed this monitoring technique during the surgery. It is important for healthcare practitioners to consult with attorneys to determine the appropriate level of care to which they should be held. They can use this information to make an informed decision about which procedures are necessary and appropriate to use in order to meet this level of care.
This case also provides another example of how an expert witness can explain the appropriate standard of care that physicians are expected to follow during their practice of medicine. During a trial for medical malpractice, it is common for the lawyers of both sides to call expert witnesses to testify about the appropriate standard of care and whether the physicians met the standard of care. Here, the expert witnesses for the hospital and physicians were able to explain to the jury that the appropriate standard of care did not require the neurosurgeons to employ intraoperative neurophysiological monitoring during the patient’s surgery. Healthcare practitioners should consult with counsel to ensure that they fully understand the standards of care guiding their practice. With this information, practitioners then can take steps to ensure that they are complying with the appropriate standard of care and also to ensure that they document their decisions so that they can demonstrate that they did, in fact, comply with the appropriate standard of care.
Finally, this case illustrates the importance of obtaining informed consent before going forward with surgery. Healthcare practitioners should be aware of the requirements needed to obtain informed consent from the patient or from another person on behalf of the patient. In this case, for example, the neurosurgeon made sure to discuss the potential benefits of spine stabilization surgery before going forward with the surgery. Moreover, in addition to obtaining informed consent, it is important for practitioners to maintain documentation of informed consent. This documentation can include the date and time of the discussion with the patient and/or the patient’s family; the information provided about the surgery, including the potential benefits and possible risks of the surgery; and whether any questions were asked and the answers provided. It is amazing how frequently physicians fail to obtain a meaningful informed consent from their patients and, even more frequently, fail to document it. Every human being has the right to say what they want in terms of medical treatment. Physicians have the responsibility to make sure that patients have enough information to be able to say what treatment they want. To do less than that is not only risky for the physician, but it also does a disservice to the patient. A patient might not sign a surgical consent form receiving sufficient information. The physician performing the procedure should provide this information and then obtain informed consent. The more information that the physician provides, the wiser the patient’s decision will be. Also, if the physician properly documents this consent process, a lawsuit will be less likely, regardless of the outcome.
DeKalb County Superior Court, Georgia, Case 4A50193 (March 25, 2016).