News: In July 2008, a 50-year-old maintenance supervisor for a school district underwent open-heart surgery in Texas. A day after his surgery he began losing vision in his right eye, and two days later the vision loss moved to his left eye, leaving him completely blind. His physicians and nurses thought he was reacting to medication or anesthesia, or suffering a stroke. Tests showed he did not have a stroke, and an ophthalmology consult was requested. The hospital had no ophthalmologist on staff, so one had to be credentialed specifically for the patient. The ophthalmologist determined that the vision loss resulted from an anterior ischemic optic neuropathy (AION), essentially an optic nerve stroke. The ophthalmologist ordered an immediate blood transfusion to attempt to resolve the patient’s anemia and to raise his blood pressure. Unfortunately, his vision never returned.

The patient filed suit against the hospital, his three physicians, a medical association, and a medical group involved in his treatment. A jury found in favor of the patient for $6.8 million against one of the physicians and the hospital.

Background: On July 15, 2008, a 50-year-old maintenance supervisor for a school district in Texas underwent open-heart surgery. A day later, the patient slowly lost his vision in his right eye. By July 17, the vision loss traveled to his left eye until he was completely blind. His critical care physicians and nurses thought he had a reaction to his medication or the anesthesia, or that he had suffered a stroke. Tests did not show a stroke, and an ophthalmology consult was requested. The hospital did not have an ophthalmologist on staff and one had to be credentialed specifically for the patient. The patient did not receive the benefit of an ophthalmologist consultation or any relevant intervention until 27 hours after the first vision complaint. The ophthalmologist determined the vision loss resulted from an AION, an optic nerve stroke, which can result from blood loss during surgery, anemia, and low blood pressure. The ophthalmologist ordered immediate blood transfusions to correct the patient’s anemia and raise his blood pressure. Unfortunately, the transfusions came too late, and his vision never returned.

The patient and his wife filed suit against the three critical care physicians, a medical association, and a medical group. The complaint alleged the nurses failed to make accurate and timely reports of the patient’s deteriorating vision and the critical care physicians failed to respond properly to the reports by requesting an ophthalmology consult and intervention. The complaint also alleged violations of informed consent laws. The trial court determined the two medical expert witness reports the plaintiffs relied upon were deficient with regard to causation, and the case was dismissed entirely on June 17, 2011. The plaintiffs appealed and the negligence claim was reinstated against the defendants on April 5, 2013, because the trial court applied too strict a standard regarding the expert reports. The dismissal of the informed consent claims was affirmed.

At trial, the plaintiffs’ critical care expert testified the standard of care required an urgent consultation with an ophthalmologist as soon as visual field cuts were noted, regardless of whether the physicians were aware of the possibility of an AION. The neuro-ophthalmology expert stated that if the patient’s complaints had been addressed timely, his visual field cuts and blindness could have been stopped and even reversed through timely blood transfusions. The defense argued that an AION is a rare condition with which critical care physicians generally are unfamiliar. According to the defense, critical care physicians in situations involving patient vision problems are trained to examine the brain rather than the eyes as the source; thus, the standard of care had been met.

The jury found in favor of the plaintiffs against the hospital and one of the physicians. The jury assigned 95% liability to the hospital and 5% to the physician. The award included $500,000 to the wife for personal injury and more than $6 million to the patient for lost earning capacity, physical pain and mental anguish, and care and assistance expenses. The award included non-economic damages of $1.7 million, which may be reduced to approximately $335,000 due to statutory limits on non-economic damages.

What this means to you: This case demonstrates the need for procedures for medical professionals to avoid missteps during emergencies. Not only should procedures be created for emergency situations, but it is imperative that the same personnel be trained adequately to be sure they follow protocol when emergencies occur. Once procedures are implemented and training is administered to the staff members, internal evaluation should be conducted to ensure the procedures are effective to prevent negligence. Without evaluation, poorly written procedures could be used as evidence of nonconformity with the professional standard of care. The case illustrates this by the hospital’s failure to have an ophthalmologist available for consultation, as is required by the standard of care for emergencies involving loss of vision. Procedures should instruct medical personnel to follow the standard of care for each situation, thus better insulating them and hospitals from negligence claims.

Note also that nursing staff are trained to perform a head-to-toe assessment of their patients several times during their shifts. The frequency of these assessments depends on the respective acuity levels of the patients. Postoperative patients, especially those critically ill in ICUs, require these evaluations almost continually. Any subjective or objective abnormal finding is required to be documented and immediately communicated by the nursing staff to the attending physicians and surgeons involved in the patient’s care. An assumption by a nurse, physician, or any healthcare provider that an abnormal finding is “probably caused” by one thing or another, without an immediate consultation with an expert in the specific field involved — in this case, a neuro-ophthalmologist — is likely to be found negligent.

Ischemic events are not uncommon during open-heart surgery when a machine takes over normal heart function Variations in blood pressure can cause damage to organs sensitive to sudden drops, such as the kidneys, optic nerve, and gastrointestinal tract. Negligence on the part of hospital employees, such as the nursing staff, to not catch these variations is why most juries place the largest burden of liability on the hospitals. This is compounded by the hospital’s inability to have the required specialists on staff to handle the multitude of complications that can arise during, and within the first 72 hours after, open-heart surgery. The standards of care required for hospitals to offer invasive cardiac procedures are designed to protect patients from the untoward outcomes seen in this case.

Another point to consider regarding the appellate course this case took is to recognize that cases are not finalized even after an initial verdict is rendered. Judgments can be overturned, so it is important to constantly re-evaluate the strength of a case throughout the stages of litigation to ensure that an alternative method of dispute resolution is not a more cost-effective means of resolving a case. The plaintiff in this case requested the jury make a determination of damages based on a range of about $4.2 million to $6.6 million. The jury awarded the couple $6.8 million, so clearly they thought the plaintiff’s case was even stronger than he did. The defense in this case should have pursued an alternative method of resolving this dispute, negotiated the plaintiff’s damages claims, and settled for some amount within his requested range. Jury members are laypeople who can make decisions based soundly in logic or based on emotions and empathy for a plaintiff. There is no opportunity to look into the minds of the jury, and there are few checks on the jury’s reasoning once the members enter the deliberation room.

Finally, this case shows the effects of statutory caps on the direction of emphasis on types of damages by both plaintiffs and defendants generally. The plaintiff in this case knew that there would be a statutory cap on non-economic damages, so he placed a firm emphasis on economic damages such as loss of earning capacity and future care and assistance. From the defense side, it would behoove a defendant to encourage the jury to categorize losses as non-economic damages, to subject them to the statutory cap (if applicable in the relevant jurisdiction), and lower the financial blow felt by physicians and hospitals. In this case, the non-economic damages, as categorized by the jury, amounted to $1.7 million, which will likely be reduced to about $335,000. If the defense in this case could have convinced the jury to categorize the damages more as non-economic, the amount of damages the defense was ultimately liable for would have been less.

REFERENCE

  1. Dallas County District Court, 101st Case Number DC-10-02994, July 1, 2016.