News: A state court of appeals vacated a defense verdict and ordered a new trial in a suit accusing two physicians and a hospital of negligence in preoperative care, which led to a patient’s death. The lawsuit, brought by the patient’s surviving spouse and administrator of his estate, alleged that the physicians failed to place a nasogastric tube prior to the administration of anesthesia. This failure led to a number of complications in the days following the surgery, which culminated in the patient’s death less than 72 hours after the surgery.

Although the trial court returned a verdict in favor of the defendants, the plaintiffs argued that prejudicial hearsay evidence was incorrectly allowed during trial and that a new trial should be granted. The appellate court agreed and ordered a new trial.

Background: On Dec. 23, 2011, a 41-year-old patient suffering from severe abdominal pain and nausea drove himself to the ED. Upon his arrival, around 8:30 a.m., the ED staff performed a CT scan of his abdomen. The radiologist determined that the images revealed a pattern consistent with small bowel obstruction and immediately reported the case to the general surgeon on call at the time. The patient was immediately admitted, and the surgeon instructed that the patient not be administered anything by mouth. Around 5:30 p.m. the same day, the patient was seen by a physician who changed the diagnosis from small bowel obstruction to gastroenteritis, and instructed that the patient only be administered “clear liquid” by mouth.

However, the patient’s symptoms did not subside, and he continued to suffer from severe pain, nausea, and vomiting. Two days later, a new CT scan was taken and a different radiologist found that the images showed a massively distended abdomen consistent with high-grade small bowel obstruction. The radiologist uploaded the new images to the patient’s file, reported his findings, and indicated that it was his opinion the patient would benefit from a nasogastric tube, which removes contents from the stomach, helping prevent stomach contents from entering the lungs. A surgeon reviewed the patient’s file and after consulting with the radiologist determined the patient required immediate surgery. An anesthesiologist was called in anticipation of the surgery and, together with the surgeon, the physicians decided not to place a nasogastric tube prior to the administration of anesthesia.

During the administration of anesthesia, the patient vomited. The anesthesiologist proceeded to suction the patient’s lungs and put the nasogastric tube in place. After surgery, the patient’s oxygen levels were abnormal. The patient suffered from respiratory failure and died a few days after the surgery.

The patient’s surviving wife filed a medical malpractice action centering around whether the anesthesiologist and the surgeon should have placed the nasogastric tube prior to administering the anesthesia in order to prevent the patient’s stomach contents from entering his lungs. During trial, the defendants presented a publication by the American Society of Anesthesiologists (ASA) that included disciplinary proceedings against another anesthesiologist who was an expert witness in a similar case and whose testimony was sanctioned by the ASA because it violated the association’s guidelines on expert testimony. The plaintiff contended the publication should not have been admitted as it constituted hearsay — an out-of-court statement offered to prove the truth of the matter asserted — and did not fall within any exception. The court of appeals agreed and granted a new trial.

What this means to you: While this case focused on an important legal procedural question, it reveals the types of evidence that may be properly used against healthcare providers in pending malpractice actions. Certain types of evidence or testimony are inherently suspect, and courts are supposed to exclude those in order to protect the jury from considering such unreliable evidence. This does not mean that healthcare providers should disregard such materials in practice, as there are necessarily different standards for scientific research and journals that may prove useful in practicing medicine but not in defending against malpractice allegations.

In analyzing this case, the state appeals court was asked to establish whether the defendants’ document was admissible under the “learned treatise” exception to the hearsay rule. While the plaintiff contended it did not, defense counsel argued that it amounted to a publication falling under the same exception as published practice manuals or textbooks.

The appellate court found that the publication was not in the same category as practice manuals or textbooks and determined that the trial court erred in admitting the publication. The publication contained the disciplinary proceeding by the ASA of an anesthesiologist who testified in a similar case that the decision not to place a nasogastric tube prior to the administration of anesthesia violated the required standard of care. That testimony was reviewed by a special ASA committee of expert witnesses and later sanctioned as in violation of ASA guidelines. The defendants used the disciplinary findings of the ASA to argue that an expert opinion stating that not placing a nasogastric tube prior to the administration of anesthesia should not be accepted because the same opinion had been previously sanctioned by the ASA. Further, the defendants argued that the ASA committee findings served as a guideline for expert testimony in cases involving anesthesiologists.

The plaintiff argued that the publication should not have been admitted because it consisted of prejudicial hearsay evidence. The appeals court agreed and explained that the ASA publication did not meet the necessary requirements to qualify as an “authoritative exposition of medical theory or principle.” Instead, the editorial presented the opinion of a group of experts on a controversial topic which may give rise to litigation. Thus, the defendants should not have been allowed to introduce the publication under the learned treatise exception.

During examination of expert witnesses, the defendants’ counsel introduced statements from the ASA publication that had not been attributed to any particular source. Such unattributed statements present problems because there is no method for an opposing party to question the source to determine the accuracy and validity of the statements. This is a tenet of legal procedure: Witnesses must be able to be cross-examined, and an unattributed writing makes such cross-examination impossible.

Given the appellate court’s decision, it will be interesting to see how, during the new trial, the defense will try to support its position considering the ASA publication constituted the strongest part of the defendants’ arguments. Although the decision to place the nasogastric tube after administering anesthesia could be justified given that the method chosen by the surgeon and anesthesiologist in this case is widely accepted and considered up-to-standard, the particular facts of this case may support a finding that the treating physicians should have opted for a different course of treatment under the circumstances. The radiologist recommended the placement of the nasogastric tube prior to anesthesia, given the severity of the patient’s condition.

There is little doubt that a nasogastric tube would have aided in preventing the injuries that led to the patient’s death. Even if the question of the preoperative care were to be set aside, the plaintiff may have a strong argument given that the initial small bowel obstruction diagnosed by the radiologist upon the patient’s arrival to the ED was dismissed by the surgeon and the patient’s condition aggravated for two days before any action was taken to further investigate his situation. A prompt diagnosis and treatment could have minimized harm and saved the patient’s life.

Nonemergent surgeries may be postponed if a patient is known to have consumed food or liquids other than sips of water up to eight hours before surgery because of the frequency at which the aspiration of stomach contents into the lungs during and after the induction of anesthesia can occur. The diagnoses of obstruction in the gastrointestinal tract at any level is considered a surgical emergency requiring the immediate placement of a nasogastric tube to suction so that the contents of the gut, including food and normal digestive enzymes, do not find their way into the lungs. In the face of a differing of diagnostic opinions as in this case, the primary surgeon has a duty to discuss the discrepancy with the radiologist and the second physician until agreement is reached. If necessary, a third opinion should be sought. Until a diagnosis is clarified, the most prudent course of treatment is maintaining the nasogastric tube.

Bowel obstruction surgeries are high-risk procedures, and decompression of the bowel itself can cause shock. To proceed with the surgery knowing that the upper gastrointestinal tract has not been emptied is an unnecessary risk to the patient, and may constitute medical malpractice. Given the circumstances in this case, the plaintiff may present similar testimony through a qualified expert physician to argue that the defendants’ actions fell below the applicable standard of care.


Decided on March 12, 2019, in the Court of Appeals of Georgia, Case Number A18A1810.