By Damian D. Capozzola, Esq.

The Law Offices of Damian D. Capozzola

Los Angeles

Jamie Terrence, RN

President and Founder, Healthcare Risk Services

Former Director of Risk Management Services
(2004-2013)

California Hospital Medical Center

Los Angeles

News: A patient underwent total thyroidectomy as treatment for papillary thyroid carcinoma. During the surgery, the patient’s left recurrent laryngeal nerve was severed and the physicians significantly removed or damaged her parathyroid glands. A lead physician handled the right part of the nerve and permitted a far less experienced resident to handle the left nerve. The patient requires a permanent tracheostomy and suffers from constant psychological and emotional distress related to her medical conditions.

The patient filed suit against the government because the surgery occurred at a military hospital under her husband’s Navy healthcare plan. After a three-day bench trial, a federal judge agreed that the physicians were negligent and awarded the plaintiff the state’s statutory maximum of $2.2 million while acknowledging that the patient’s damages greatly exceeded that maximum.

Background: In 2015, the 37-year-old patient, a wife of an active-duty Navy servicemember and a mother of four, was found to have an enlarged thyroid gland, according to an MRI. A subsequent ultrasound revealed a mass in the area of her right thyroid and smaller lobe nodule. The patient was referred to an otolaryngologist at a hospital operated by the U.S. Department of Defense, which provides healthcare to military servicemembers and their families. The physician scheduled a fine needle aspiration (FNA) biopsy to determine whether the mass was malignant, and opined that the patient would likely have to undergo surgery. The biopsy indicated that the patient tested positive for papillary thyroid carcinoma.

Based on the patient’s preoperative scans and the result of the FNA biopsy, the patient’s physicians recommended that she undergo a total thyroidectomy, followed by postoperative radioactive iodine treatment. While the physician claimed to have advised the patient about the risks involved with the total thyroidectomy, the patient claimed that she did not remember whether the physician actually provided any of the counseling and there was no evidence that the physician explained the risks.

During the procedure, the physician was assisted by a chief resident in his fifth year who was approximately two months from completing his residency. The resident had not treated the patient before surgery. The lead physician began to dissect around the patient’s right lobe, and the physicians observed that the mass was invading the right recurrent laryngeal nerve. However, the lead physician permitted the resident to work on areas around the patient’s left nerve. Because of the patient’s condition and the right nerve’s impact from the cancerous mass, the preservation of the left nerve was critical: If the left nerve also was compromised, the injuries would be catastrophic. The resident attempted to dissect the left thyroid lobe, but the lead physician discovered that the resident transected the left recurrent laryngeal nerve. Thus, the patient requires a permanent tracheostomy, constant medical care, and attention.

The patient filed suit, alleging that the physician failed to provide care consistent with the applicable standards by permitting the resident to lead at a critical time and by failing to consider a partial removal, which would have avoided the left nerve completely. During the trial, five lay witnesses, including the patient and her husband, and seven expert witnesses testified. The patient testified about her extreme psychological and emotional distress related to her medical conditions, including living in a state of hypervigilance to keep her tracheostomy clear and functioning correctly. A life care plan expert testified that the physical medical care alone would cost more than $3 million.

Following a three-day bench trial, the judge agreed that the physicians were negligent and that the patient’s damages exceeded the statutory maximum of $2.2 million.

What this means to you: One of the primary lessons from the case for physicians and care providers is that assistant physicians, including residents, may be subject to liability for failing to provide services within the standard of care as well, and that standard does not change for a resident still in training. Surgery on or around the thyroid always is high risk. Intense training, supervision, and proctoring are required before a surgeon is considered competent enough to be credentialed for that procedure. If possible, the physician should ask an experienced surgeon available to step in when complications develop or to perform the more critical parts of the procedure for which the primary surgeon may not be fully prepared.

While it is expected that physicians in training, particularly surgeons in training, will participate in procedures, the trainee must be properly supervised and provided the opportunity at the appropriate time. That responsibility and liability falls to the supervising physician, and in this case, the injured patient alleged that the physician was negligent by permitting the resident to take the lead at a critical time in the procedure.

It is unusual for a resident, medical student, or others in training to be named in legal action or financially responsible for damages unless they are found to have acted outside of their scope of practice with intent to harm. The patient also must be informed, in writing and consent, that there will be others participating in the surgery. Participants must be named by level of expertise, such as residents, medical students, and technicians.

Another important lesson for physicians and care providers concerns providing thorough information to patients about the nature and purpose of a specific course of treatment or procedure, the potential risks, and alternative courses of treatment. Absent emergency circumstances where there is not sufficient time to provide information, providing this information is necessary as patients are entitled to make a fully informed decision about their medical treatment.

By its very nature, informed consent must be individualized to the specific patient and that patient’s circumstances. Typically, the “informed consent” standard is that a physician must disclose whatever information is “material” to the patient’s decision. There are no hard and fast rules about percentages of risks, such that a physician must inform the patient if there is an X% risk of significant injury, the physician must inform the patient. Instead, the standard is more flexible, and physicians and care providers may opt to be overly cautious and inform patients about risks with low probabilities (especially if the corresponding harm from such a risk is great).

In addition to providing the information to patients, an equally important part is contemporaneously documenting the provision of information. It is important for physicians and care providers to tailor the information specifically to each patient and their course of treatment. Standardized consent forms that are not customized are not recommended. A form may be used, but should be individualized to the specific patient and the specific information provided.

Physicians and care providers must be mindful to document thoroughly the circumstances of the patient’s consent, as a patient may subsequently not recall whether or when the physician provided the information. In this case, the physician claimed to have advised the patient about the procedure and risks, but there was insufficient evidence other than the physician’s own testimony to support the claim. A written document created contemporaneously goes a long way in defending claims about a lack of informed consent, and getting a patient’s signature on a written consent form is ideal. If a medical malpractice case arises, it often will be tried years after the underlying events and the memories of all the individuals involved will be less reliable than contemporaneous written documentation. It also is prudent for the physician to document that the patient understands and can verbally repeat the information presented to him or her. This brings informed consent full circle because the patient must take an active part in the discussion, and not just be a passive listener.

Fortunately for the liable defendant in this case, a statutory maximum limited the amount that the injured patient was permitted to recover — and the court even opined that the injuries greatly exceeded that maximum. While jurisdictions treat these issues differently, many states set maximum amounts that injured patients are permitted to recover; these maximums are legislative policy decisions designed to reduce the ever-increasing costs of insurance for physicians and care providers. Such maximums should not be considered when providing underlying care to patients, but in the event that a medical malpractice claim is subsequently brought, physicians and care providers should review these maximums, if applicable. Knowledge that the claim is capped may facilitate strategic considerations or influence settlement discussions, permitting physicians to resolve disputes more efficiently with injured patients while avoiding additional legal expenses incurred defending a malpractice action.

REFERENCE

Decided on July 23, 2019, in the United States District Court for the Eastern District of Virginia, Case Number 1:18-cv-821.