News: A 48-year-old woman suffered an asthma attack while a patient at a hospital. Increased carbon dioxide in her body from the attack led to swelling in the patient’s brain, and physicians failed to promptly treat the significant condition. The patient alleged that she should have been transferred to a facility with more advanced instruments and treatments, but such actions were not taken.

As a result, the patient suffered brain damage and permanent debilitating injuries, including lifelong speech and motor deficiencies resulting in permanent confinement to a wheelchair. She requires round-the-clock assistance, which she receives from her long-term life partner. Following trial, a jury agreed that the hospital’s and physicians’ actions constituted medical malpractice and awarded the plaintiff $110 million.

Background: In December 2010, a 48-year-old grandmother suffered a life-threatening asthma attack while she was a patient at a hospital. As the patient’s asthma attack worsened, carbon dioxide buildup in her brain led to swelling. Given such circumstances, time is of the essence and so-called “salvage” treatments must be performed to prevent the patient from sustaining permanent injuries or death. In particular, when the condition is caused by elevated carbon dioxide levels, procedures must be implemented to rapidly increase the amount of oxygen entering the patient’s bloodstream. Without prompt action and timely increase of oxygen levels, hypoxia will develop and lead to brain injuries. Other organs also may be damaged due to the fact that the bodily tissues are not receiving enough oxygen to function correctly. The hospital that had the patient in its care addressed the worsening condition by performing a treatment known as inhalation anesthesia, which is not as effective as other treatments.

However, this hospital did not have the necessary technology to perform extracorporeal membrane oxygenation (ECMO) or high-frequency oscillatory ventilation (HFOV). While this hospital did not have the capabilities, nearby facilities did. These treatments would have made a significant difference in how the patient’s condition advanced and developed. Even as her condition worsened, the hospital and physicians did not consider the possibility of transferring her to a more advanced facility. Instead, the patient was moved to the “dark side” of the hospital’s ICU, where her condition continued to worsen and the brain swelling caused permanent damage to her speech and motor functions, and confinement to a wheelchair.

In total, the patient spent 328 days in the hospital and nursing facilities before being able to return home. As a result of the patient’s brain damage, she requires permanent assistance and medical care, which she receives from her long-term life partner.

Following her substantial injuries, the patient brought suit against the hospital and four individual defendant physicians who oversaw and provided her treatment. In part, the patient alleged that the care providers’ failure to transfer her to a facility that could provide adequate and appropriate treatment constituted medical malpractice. The physicians admitted to being aware of the treatments and were familiar with research indicating the high success rate in preventing permanent injury due to asthma-induced hypoxia. The defendant physicians and hospital nevertheless denied liability. A jury concluded that the physicians and hospital were liable and awarded the patient $110 million for her injuries and continued required medical care.

What this means to you: This medical malpractice action focused on whether the defendant physicians’ decision not to transfer the patient, who could have received different treatment at a better-equipped facility, constituted a breach of the applicable standard of care. The physicians were aware of the patient’s condition and attempted to provide treatment, so this was not an issue of failing to provide any treatment or delay in providing the appropriate treatment. Rather, the physicians in this case were incapable of providing treatment such as ECMO or HFOV due to the limitations of their facility. Those treatments were readily available at other nearby facilities — a fact the defendant physicians knew.

At trial, the physicians and hospital presented an expert witness who testified that use of ECMO and HFOV to treat a patient in a similar condition is not the standard of care. In fact, the expert opined that such treatments would not be standard but were instead novel; the expert further claimed that salvage therapy and inhalation anesthesia — which were administered by the defendant care providers — was the appropriate course of treatment in the given situation.

The patient presented her own expert witness who offered an opinion in direct contradiction to the defendants’ expert. According to the plaintiff’s expert, the defendants’ expert attempted to confuse the words “novel” and “salvage.” As pointed out by the plaintiff’s expert, the inhalation anesthesia administered by the physicians also is considered “salvage therapy” to the same extent ECMO would be considered part of such category. In this sense, the meaning of “salvage” must be interpreted as a therapy beyond that which is conventional — a therapy used to save critical, dying patients in a final attempt. The plaintiff’s expert noted that this concept should not be confused with “novel” therapies, which include all untested and untried therapies.

Furthermore, the defendant’s expert’s submissions included a number of papers and scholarly articles indicating that ECMO had been used to treat severe cases of asthma since the 1990s. Additional research demonstrated how hospitals within the same geographic region had been consistently using this sort of treatment for years and had encountered a very high rate of success in saving patients suffering from severe asthma.

The two dueling experts in this case reveal another important lesson: Experts in medical malpractice are critical, and an expert can make or break a case. Here, the court found that the defendant’s expert’s opinion was inaccurate to the extent that ECMO and HFOV are not considered novel and have been in use since the 1970s. Such a determination necessarily undermines the expert’s opinion generally, damaging the expert’s credibility with the jury.

During their depositions, three of the physicians involved in the patient’s care admitted that they knew of the existence and availability of ECMO treatment in a nearby facility, just miles away from the hospital where the patient received treatment. The physicians further admitted that had the therapy been available at the hospital, the plaintiff’s brain damage could have been avoided. These facts demonstrated in part that the physicians’ and hospital’s care fell below the applicable standard. The jury agreed with the patient particularly because while the defendant physicians stated they had run out of options for the patient’s treatment, they also stated that they knew about the existence and availability of ECMO; therefore, they should have considered transfer and made an attempt to prevent further damages.

In addition, the patient’s expert explained that while HFOV treatment involved a higher level of risk, it was also not any more experimental than the inhalation anesthesia that was performed, and more hospitals are able to provide this type of treatment compared to ECMO. Thus, by the physicians’ own admissions, because they had exhausted the possibilities available at the hospital in question, HFOV should have been attempted as it could have potentially prevented the patient from suffering permanent damage.

Hospitals are required by state and federal laws to not admit or transfer out patients who need a higher level of care than can be provided by the facility the patient is in. While this sounds simple enough, the process of transferring patients from one acute care setting to another is more complex: there must be bed availability, a physician must agree to accept and take over the care of the patient, insurance issues and payment sources must be acceptable, and so on. It is usually nursing staff supervisors or case managers who work on these arrangements. When there are patients who are not responding to standard treatments, efforts by care providers must be made expeditiously to consult with experts and get opinions on alternative treatment options that are available and accessible. It is much more prudent for a physician to get an expert’s opinion while the patient is still under his or her care than to hear such opinion at trial — and the failure to timely seek out and implement such options may constitute medical malpractice. n


Decided on April 12, 2019, in the Supreme Court of the State of New York, Case Number 310294/11.