By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola
Jamie Terrence, RN
President and Founder, Health Care Risk Services
Former Director of Risk Management Services (2004-2013)
California Hospital Medical Center
Rebeka Rioth, 2017 JD Candidate
Pepperdine University School of Law
News: In 2010, a 57-year-old woman was admitted to a hospital to undergo surgery to permanently stitch her stomach into the correct anatomical position after a hiatal hernia caused her stomach to partially invade her chest cavity. When the woman’s blood pressure dropped tremendously post-surgery, the medical team failed to identify the problem, and they mistreated it. At trial, the jury returned a verdict in favor of the woman in the amount of $4.3 million, and it found that the hospital and the anesthesia group violated the appropriate standard of care and negligently caused the woman’s death.
Background: On Oct. 8, 2010, a 57-year-old woman was admitted to a hospital to undergo laparoscopic surgery to repair a hiatal hernia. The hiatal hernia had caused the woman’s stomach to bulge upward and partially invade her chest cavity. The doctors intended to perform a procedure known as a Nissen fundoplication to permanently stitch the woman’s stomach back into the correct anatomical position.
After surgery, the woman was transported to the hospital’s postanesthesia care unit, where the on-call nurse noticed that the woman’s blood pressure was dropping at an increasing rate. Following an 83-minute surgery, the woman’s blood pressure was 106/49. Ten minutes later, her blood pressure had dropped to 75/45.
The on-call nurse called the anesthesiologist in charge of the woman’s care, who ordered the intravenous administration of ephedrine, a vasopressor medication used to treat low blood pressure. After no improvement, the anesthesiologist was called a second time and gave the nurse an order for another dose of ephedrine. Once the woman’s blood pressure dropped to 63/34, the anesthesiologist was contacted a third time, after which he ordered two additional vasopressors, vasopressin and then Neo-Synephrine, in an attempt to raise the woman’s blood pressure.
At this time, the general surgeon who performed the Nissen fundoplication briefly checked on the woman and, although aware of the woman’s low blood pressure, did not perform a surgical consultation or order any tests. After there was no improvement in the woman’s blood pressure, the on-call surgeon ordered a complete blood count, a comprehensive metabolic panel, and chest X-rays. However, the woman soon became unresponsive, and doctors performed a second, emergency surgery in which they found a pulsatile arterial bleed that caused her entire abdomen to fill with blood.
Although doctors were able to stop the bleed, the massive blood loss caused the development of a disseminated intravascular coagulation (DIC), which is a condition in which a patient begins to spontaneously bleed from multiple locations. As a result, the woman was placed on life support after surgery. The following day, she was taken off life support and pronounced dead.
The woman’s daughter filed a wrongful death lawsuit against the anesthesia group that employed the anesthesiologist, the hospital, and the clinic that employed the doctors who performed the laparoscopic surgery. The plaintiff’s attorneys argued that the anesthesiologist should have suspected internal bleeding after the woman’s low blood pressure did not improve following the administration of ephedrine.
They further argued that this failure to consider the possibility of an internal bleed caused the woman to reach the point of no return once she became unresponsive in the postanesthesia care unit. The attorneys asserted that, had the general surgeon or anesthesiologist detected an internal bleed earlier, the woman would have returned to the operating room sooner to address the bleed and her death ultimately would have been prevented.
Attorneys for the hospital and anesthesia group argued that shortly after the woman’s Nissen fundoplication, she experienced a spasm in one of her arteries that had been cauterized in surgery, and it was this spasm that caused the internal bleed. Furthermore, they argued that even if the anesthesiologist had ordered a complete blood count sooner, the test would not have been determinative of any internal bleeding. They also believed that because it is normal for patients who undergo anesthesia to experience low blood pressure, the woman’s low blood pressure post-surgery was not indicative of an internal bleed.
Following trial, a jury returned a verdict in favor of the plaintiff in the amount of $4.3 million. The jury found that the hospital and the anesthesia group, which employed the anesthesiologist in charge of the woman’s care, violated the appropriate standard of care and negligently caused the woman’s death. Although the anesthesia group appealed the verdict, an appellate court affirmed the trial court’s ruling.
What this means for you: This case illustrates the importance of patient postoperative care. Although there may be no obvious complications occurring during a surgical procedure itself, a patient is still at risk of postoperative complications. Consequently, it is imperative that healthcare professionals employ practices and methods that can efficiently diagnose a condition once the patient begins to show any abnormal signs or symptoms or significant changes in baseline vital signs, such as pulse, respiratory rate, and blood pressure, all established during the preoperative assessment required before surgery begins. A blood pressure of 63/34 in an otherwise healthy person is indicative of a massive hemorrhage, and emergency procedures should have been activated, including immediate callback of the surgical team, initiation of a massive transfusion protocol, and a rapid response or code blue call within the facility.
Unfortunately, in this case, the anesthesiologist continued to administer various medications for treating low blood pressure without physically examining the woman, ordering any tests, or considering any underlying causes of the low blood pressure, such as internal bleeding. This response is especially significant given the fact that the Nissen fundoplication required the repeated cauterization of the woman’s arteries, which substantially increased the likelihood of the woman developing an internal bleed post-surgery. Had the woman been examined by the surgeon or anesthesiologist, a hot, rigid abdomen would have been detected, which would have indicated the bleeding taking place below.
This case also exemplifies how quickly a patient’s condition can go from stable to critical and, in turn, how healthcare professionals can be held responsible for the decisions made during these crucial moments. In this case, the attorneys for the woman were successful in convincing a jury that postoperative tests, such as a complete blood count, a comprehensive metabolic panel, and chest X-rays, should have been ordered soon after the woman’s blood pressure began to drop. The implication of this conclusion is that the jury was unconvinced that the anesthesiologist’s method of ordering three medications without examining the woman in person met the standard of care in this case.
The outcome of this case also was heavily dependent on the use of medical experts on both sides. Three medical experts testified on behalf of the woman to establish the appropriate standard of care for patients who undergo Nissen fundoplications. One of the experts testified that the woman’s blood pressure was extremely low and that the anesthesiologist should have considered internal bleeding as a possible cause after the woman failed to respond to the administration of the first medication, ephedrine. Additionally, the expert believed that, had the anesthesiologist notified the general surgeon sooner of the woman’s unimproved condition, this may have resulted in an earlier return to the operating room and prevented the woman’s death.
Expert testimony often is critical in medical malpractice cases, and it is important for clients in such cases to quickly identify and secure the assistance of qualified experts. Having an expert on board early in the case is important for shaping the approach to the entire case and, thus, justifies the expense of early involvement. Waiting until the end of the case to secure an expert, and then find out that the case has not been properly developed to suit the expert’s needs, is “penny wise and pound foolish.”
There are several methods for finding expert witnesses. Often, attorneys who specialize in medical malpractice cases have a stable of experts they like to use, but in such situations (when someone regularly gives expert testimony), it is important to try to find someone who maintains a balanced portfolio of plaintiff side and defense side cases. A seasoned expert with a balanced portfolio of work will maintain the aura of independence better than someone who handles cases only for one side or the other, which conveys the impression of a “hired gun” who will say whatever a party needs, thus undermining the credibility and value of the opinion.
When counsel doesn’t immediately have in mind a couple of candidates to serve as expert witnesses, he or she usually will start a search by asking colleagues in the legal community for recommendations, but if that does not yield any strong prospects, it will become necessary to commence a search from scratch. Depending on the subject matter, other doctors practicing in a given area are obvious candidates, as are academics. Some counsel are cautious, if not simply disinclined, to work with potential experts who never have served, but with the proper introduction to the litigation process and some extra attention to training in effective oral presentation, even a new expert can be a very powerful witness. The most important aspects of the process are complete mastery of the subject matter and the ability to convey the opinion and the reasoning behind the opinion in a simple and straightforward manner to the finder of fact, whether that be a jury or a judge.
All experts need to carve out time to work with counsel and with the client to prepare for testimony in a specific case. Ironically, it is sometimes the most seasoned experts who are the most difficult to work with in this regard because they may believe erroneously that they don’t need to prepare vigorously because they’ve seen it all before. However, every medical malpractice case will have its own unique facts, medical records, and other twists, and an expert who is unprepared to apply those to his or her general base of knowledge will be much less persuasive than one who is sharp with the case. There is also the risk that an expert who has not sufficiently connected his or her body of knowledge to the actual facts of the case may be precluded from testifying as a result of a pretrial motion called a motion in limine. Therefore, it is critical for the client and his or her counsel to make sure the expert devotes sufficient time to preparing for the specific case.
- DeKalb County Circuit Court, Illinois, Case No. 10-L-113 (June 20, 2016).