News: On Nov. 11, 2010, a 64-year-old retiree presented to a Los Angeles pain management center, where an anesthesiologist/pain management specialist had treated him for his severe neck pain since 2006. That day, the specialist administered four bilateral facet joint and selective nerve block injections at the top of the patient’s spine with the help of another anesthesiologist.

The patient awoke with horrific facial pain and was prescribed pain medication. He then saw five physicians, including the anesthesiologist, about his pain, to no avail, and was eventually afflicted with quadriplegia due to a cervical spine infarction. The patient sued the anesthesiologists and the hospital, alleging a failure to obtain informed consent and negligence that resulted in his quadriplegia.

The patient won a jury verdict in his favor against the first anesthesiologist and the hospital on a theory of ostensible agency. The verdict totaled $7.9 million and assigned 60% liability to the anesthesiologist and 40% to the hospital.

The hospital appealed, and on Oct. 4, 2016, the Court of Appeal of California reversed the judgment against the hospital as a matter of law, holding that the anesthesiologist was not an ostensible agent of the hospital.

Background: In November 2010, a 64-year-old retiree presented to a pain management center in Los Angeles for an appointment with an anesthesiologist/pain management specialist. He had received treatment there with the anesthesiologist since 2006 for his severe neck pain. The anesthesiologist administered four bilateral facet joint and selective nerve block injections at the C1-2 level.

When he woke from the procedure, the patient experienced tremendous facial pain, for which he was prescribed pain medication. He alleged that he remained bedridden for the next few days, with increasing pain in his neck and throat. The patient then saw five physicians, including the anesthesiologist, regarding his symptoms, but nothing helped.

On Nov. 20, the patient was taken to the hospital that managed the pain center’s ED to address his developing neurological conditions. He eventually degenerated to quadriplegia due to a cervical spine infarction at the C2 level.

The patient sued the two anesthesiologists and the hospital that managed the pain center, alleging that failure to obtain his informed consent and negligence in treatment and injections caused the cervical spine infarction that resulted in quadriplegia. He also contended that the anesthesiologist was an ostensible agent of the hospital, and the hospital was liable for the negligence. (California generally prohibits physicians from serving as hospital employees, so the plaintiff needed to pursue a theory of ostensible or apparent authority.)

At trial, the patient claimed that, despite his pre-existing neck condition, he was a very active person before the procedure. His wife alleged that her life is now drastically changed, as she devotes almost all of her time caring for her husband. Plaintiff’s counsel further contended that the procedure was executed using the iodine contrast Omnipaque, despite the patient’s documented allergy to it.

Defense counsel argued that the patient’s quadriplegia was unrelated to the procedure and the cervical spine infarction occurred after the procedure, as the patient was at risk for a stroke. The defense also argued that the plaintiff’s life care planner grossly overstated his future medical costs.

Following the 21-day trial, the jury awarded the plaintiff $7,978,185. The jury found the procedural anesthesiologist not negligent, but held the original anesthesiologist 60% and the hospital 40% liable for negligently causing the plaintiff’s injuries. In contradiction to the appropriation of liability, the jury found that the hospital’s negligence was not a substantial factor in causing the injuries.

The California Court of Appeals reversed the judgment as a matter of law as to the hospital, holding that the hospital was not negligent on the grounds that the anesthesiologist was not the hospital’s ostensible agent. Notwithstanding the fact that the hospital’s website and the anesthesiologist’s business cards failed to inform patients of the absence of any principal-agent relationship, the court held that it was unreasonable for the patient to believe the anesthesiologist was an agent of the hospital. Informing the court’s decision was the fact that the patient signed or initialed 25 times his acknowledgment that all physicians were independent contractors rather than agents of the hospital. The court also considered the patient’s choice to be treated by the anesthesiologist. The court affirmed the judgment against the anesthesiologist.

The dissent argued, among other things, that the majority ignored the jury’s finding by an 11-1 vote that the plaintiff’s belief about the existence of an agency relationship was reasonable, and concluded that the majority supplanted the jury and decided the case as it believed it should have been decided.

What this means to you: This case embodies a need for clearly communicating the existence of agency relationships, or lack thereof, to patients to avoid the inadvertent creation of ostensible agency, which can arise to impute liability to the hospital for the actions of a non-employee if the plaintiff reasonably believed the hospital had authorized that person to act on the hospital’s behalf based on the actions or lack of action by the hospital. The conditional forms signed and initialed by the patient in this case stated, “physicians are independent contractors and are neither employed by nor agents of this facility. Patient recognizes that Physicians furnishing services to the Patient, including without limitation ... anesthesiologists, are all independent contractors with Patient for the purposes of the provision of professional services and are not employees or agents of [the hospital] for such purposes.” The majority of judges on the Court of Appeal found this language to be sufficient, when coupled with the other facts of the case, to communicate the lack of relationship to the patient. These procedures can be enhanced by asking patients to review and initial or sign similar forms containing such language at multiple times in the admission and treatment process. Walking through these concepts orally with the patient (and documenting that process) also can be helpful, and can be easily conducted when reviewing (and documenting) all the patient’s treatment options generally.

The plaintiff also contended the anesthesiologists conducted the procedure in question using a substance that was allegedly documented to cause allergic reactions to the patient. The counsel for the defense argued that there was no evidence to support the contention that the physicians used the substance in question in this matter (Omnipaque), but the jury nonetheless found the physicians to have committed medical malpractice. The lesson to be learned, again, is the importance of keeping very detailed records for medical procedures, since injuries happen that are often out of the physician’s control. Hospitals must ensure there are adequate policies in place for proper recordkeeping of all operations and the substances used for treatment. To this end, every patient is asked about allergies to medications on admission to a hospital and before a procedure. Both the physician and pharmacy releasing the drug for use on a particular patient must review the patient’s stated allergies to ensure there is no known risk. However, reliability is only as certain as the patient’s ability to know and report his or her allergies accurately. Once stated, the known allergy is entered into and remains part of the patient’s medical record.

Finally, this case illustrates the importance of pre-screening patients to assess the risks of injury and informing them of those risks. The defense alleged that the patient suffered a stroke during the procedure coincidentally with, and independent of, the injections given by the anesthesiologists. They offered evidence to support the conclusion that he was at risk for a stroke before the injections were administered, but the jury was not swayed. Once it is determined that a patient is at risk, it is imperative to ensure that they are properly informed of the risks before the procedure begins to insulate hospitals and physicians from liability. This informed consent must be evident in the medical record before any procedure can begin. In addition, surgical staff are trained to ask patients if their physicians have explained the procedures to them. If the response is negative, physicians are contacted and asked to meet with their patients before proceeding further. These steps are mandated by both state and federal regulations.

REFERENCE

  • Court of Appeal of California, Second Appellate District, Division One, Case No. B260715, B262530 (October 4, 2016).