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
Morgan Lynch, 2018 JD Candidate
Pepperdine University School of Law
News: A 62-year-old woman was diagnosed with carotid artery disease in late 2006. She later presented to a Chicago hospital for a scheduled procedure, which involved an injection into her neck to numb the area. Immediately following the injection, the patient experienced breathing problems and went into cardiac arrest. The arrest caused her to suffer brain damage and put her in a comatose state. She passed away the next day at the hospital.
One of the woman’s three children filed suit on behalf of her mother’s estate, alleging that the physician and hospital caused her mother’s injuries and untimely death. The estate asked for $3 million for the grief and sorrow of the adult children. Both sides engaged in a battle of the experts. After the five-day trial, the jury delivered a $1.2 million verdict in favor of the estate.
Background: On Oct. 3, 2006, a 62-year-old woman presented to a hospital in Chicago for a scheduled carotid endarterectomy after being diagnosed with carotid artery disease. An independent contractor anesthesiologist administered a local anesthetic block injection into the woman’s neck to numb the area where the scheduled procedure was to take place. Just after the woman received the injection, she experienced breathing difficulty and eventually suffered cardiac arrest. The arrest caused an irreversible brain injury that left her comatose. The patient was resuscitated several times, but eventually passed away at the hospital the following day.
On Oct. 3, 2008, the administratrix of patient’s estate, one of her three surviving adult children, filed suit against both the anesthesiologist and the hospital for wrongful death cause by medical malpractice. The administratrix alleged that her mother’s death was caused by the anesthetic injection, which was allegedly wrongfully injected into one of the blood vessels in her mother’s neck. The estate’s complaint also alleged that the hospital and physician failed to properly manage the woman’s medications both prior to and during the procedure. The hospital was sued under a vicarious liability theory, but the suit against the hospital was dismissed when it was determined the physician was not acting as an agent of the medical facility.
Ten years after the patient’s death, the case was finally certified to proceed to trial against the physician. At trial, the estate’s counsel alleged that the physician improperly administered the injection and inserted it into the patient’s blood vessel in her neck. The estate’s counsel further contended that the anesthesiologist strayed from the requisite standard of care by neglecting to ascertain whether the needle entered a blood vessel.
In response, the defense argued the physician did not inject the anesthesia into the patient’s blood vessel and that his actions comported with the applicable standard of care. The defense also disputed the causation element, claiming the plaintiff’s injuries were caused by an unrelated, intervening factor. To rebut the defense’s causation claim, the estate maintained that the cardiac arrest occurred less than two minutes after the administration of the anesthesia.
The defense, however, offered evidence to indicate there was a 10- to 12-minute delay between the time of completion of the procedure and when the patient began to exhibit negative symptoms. The defense counsel further contended that the cause of the patient’s respiratory failure was pulmonary embolism secondary to chronic atherosclerotic disease. The defense’s expert opined that the pulmonary embolism was caused by the patient’s deep vein thrombosis rather than negligent needle placement. Finally, the defense’s anesthesiologist expert testified that “if the reaction occurred within one to two minutes of the injection, she likely arrested as a result of the injection.” The expert then testified, “if she exhibited signs of arrest more than two minutes later, the reaction could not have been caused by the injection.”
The trial lasted five days, and the jury deliberated for five and a half hours. The 11-member jury delivered a unanimous verdict in favor of the estate, and awarded each of the children $400,000 to compensate for their grief and suffering from the loss of their mother. The physician was insured, but it is unclear whether the coverage allowed for injuries caused by a physician’s negligence.
What this means to you: This case shows the defendant’s use of the timeless litigation tactic of delay. Of course, plaintiffs will argue that justice delayed is justice denied, but it is a useful defense strategy nonetheless. There are many methods that a defendant can use to prolong the litigation process and avoid outstanding judgments, and the defendant in this case used quite a few. In fact, the online docket needed to be divided into two different sections to account for all of the documents filed in the case.
The case that ultimately proceeded to trial was not a particularly complex case, as there was only one defendant and one plaintiff (the estate). The trial required only three experts to testify. Clearly, this case was relatively straightforward — as much as litigations can be — but the discovery window lasted for years and was reopened after it initially closed. Furthermore, the case was continued for a case management conference an astounding 55 times. This shows that the defense did all that it could to prolong the litigation. These kinds of tactics can eat away at plaintiffs and the lawyers who represent them, who often operate on a contingency. It is important not to overplay this strategy, as eventually the judge may grow wise to what is going on and assess fees or costs against the defense to the plaintiff to compensate the plaintiff for improper behavior or unprofessional conduct by the defense.
On the front end of risk management, procedures must be established to ensure that medical professionals check patient history very carefully to identify chronic illnesses that may interfere with proper care. The CDC reported that 86% of U.S. healthcare costs are spent on treatment related to chronic diseases. In this case, the defense argued that the patient’s death was caused by a chronic illness that was recently diagnosed. Even if that argument is true, the anesthesiologist and any other involved medical professionals should have reviewed her medical history to consider how the illness would affect the scheduled procedure. Perhaps this litigation would have been avoided if they had.
This case also illustrates the constant need for all physicians to double check the placement of needles for injections. When injecting into any area of the body, the very simple procedure of pulling back on the syringe to see if blood flows into the barrel takes about one second. If blood appears, the needle is most likely in a blood vessel and should be withdrawn before injecting. The needle is then reinserted in another area and checked again. Additionally, when using drugs that are potentially lethal if misdirected into a blood vessel, the physician should check and state “no blood return” to others in the room, thus protecting both patient and physician from harm.
Note also that, in the complaint, the estate cited as a cause of the injury the fact that the anesthetic was “introduced into a highly vascularized area.” The plaintiff’s counsel hammered the point that the defendant anesthesiologist strayed from the standard of care by not checking the placement of the needle. Therefore, procedures must be implemented by medical facilities and associations to address the risk associated with improperly placed injections.
It is also important to consider jury selection issues when trying a case like this one. Approximately 10% of the American population suffer from trypanophobia, the fear of injections, and about 20% suffer from some degree of fear associated with needles and sharp objects. Thus, jury members who have such fear need to be weeded out immediately to prevent the potentially tremendous bias against defendants. One of the procedures that happens shortly before each jury trial is voir dire, in which the judge, the lawyers, or some combination have the opportunity to question jurors to bring such biases to light. It is critically important to take advantage of this opportunity. The last thing a defendant in this kind of case wants is a foreperson in the jury room trying to steer the jury toward a runaway verdict because of his or her own biases or phobias.
Finally, this case raises an issue related to expert witness testimony in medical malpractice suits. The defense’s expert in this case testified that “if the reaction occurred within one to two minutes of the injection, she likely arrested as a result of the injection.” He then testified that “if she exhibited signs of arrest more than two minutes later, the reaction could not have been caused by the injection.” Professional experts who value their neutrality and are in the profession for the long haul will give opinions that may benefit both sides, depending on the state of the evidence. The timing of events during procedures is critical. Every drug provided must be documented with the exact time given. The exact time of the patient’s cardiac arrest also must be included in the medical record. Finally, it is crucial to ensure your expert has a firm handle on the facts of the case and that those facts are accurate, as they will shape his or her opinion and could swing the whole verdict.
Cook County Circuit Court, Case No. 14-L-752, Dec. 14, 2016.