Damian D. Capozzola, Esq,The Law Offices of Damian D. Capozzola,Los Angeles, CA
Jamie Terrence, RN, President and Founder, Healthcare Risk Services, Former Director of Risk Management Services (2004-2013), California Hospital Medical Center, Los Angeles, CA
Elena N. Sandell, JD, UCLA School of Law, 2018
News: A patient underwent gastric bypass surgery, but suffered permanent brain damage because of post-surgery complications and requires around-the-clock care for the rest of her life. The patient sued, alleging that the physician who performed the procedure failed to recognize that she was suffering from a severe thiamine and vitamin B1 deficiency, which led to her injuries. A jury awarded a $14.1 million verdict. The defendant physicians appealed, but the appellate court affirmed the verdict.
Background: In November 2011, a woman underwent gastric bypass surgery. Less than one month later, she began experiencing complications, including nausea and vomiting, which she immediately reported to the physician who performed the procedure. According to the patient, her symptoms worsened when she attempted to eat solid food, but liquids were not problematic. The physician suspected a stricture occurred as a result of the bypass surgery; in January 2012, the physician performed an outpatient dilation procedure.
Two days after the second procedure, the patient was treated for dehydration; the next day, she went to the emergency department (ED) complaining of vomiting. On admission to the hospital, she provided a history of the prior procedures and indicated she had lost 100 pounds during the six weeks following the procedures. A computed tomography (CT) scan was performed in the ED, and the results suggested the patient was suffering from an esophageal rupture. She was admitted to the intensive care unit (ICU) and subsequently diagnosed with pancreatitis and dehydration. At this time, she was alert and responsive, and there was no indication she was suffering from any deficit of movement in her extremities.
A few days after admission in the ICU, another physician took over the patient’s care. She had difficulty walking even when she was assisted by nurses, and she complained of a tingling sensation in her fingers and tightness in her shoulder. Additionally, the patient’s vomiting had not subsided, she had lost control of her bowels, and although she was awake, she would not respond to the physician’s questions, leading the physician to question if she was depressed. During the next week, the patient did not receive any food or liquid by mouth. Although providers attempted to administer fluids by mouth, the patient was not able to tolerate them. A second nutritional assessment was performed, and total parenteral nutrition (TPN) was suggested again. However, TPN was not started, and the patient continued to suffer from dizziness, vomiting, and Trendelenburg gait, which occurs in people with weakness in their pelvic muscles.
Approximately a week later, the patient was discharged with orders for TPN administration at home. The diagnosis recorded on her discharge chart identified intractable nausea and vomiting, obesity, and obstructive sleep apnea. During her hospital stay, the patient never received supplemental thiamine or vitamins. Furthermore, the TPN order did not include thiamine, only glucose and other nutrients. Three days after discharge, the patient was re-admitted to the hospital. Her condition had deteriorated significantly and was marked by confusion and mental decline. During this admission, the patient was placed on a ventilator.
The patient was diagnosed with Wernicke’s syndrome, a condition causing encephalopathy due to severe thiamine deficiency. However, by the time the patient was diagnosed, her condition had worsened significantly and had progressed to Korsakoff syndrome, an irreversible condition that causes permanent brain damage. As a result of the untimely diagnosis, the patient suffered permanent brain injury and will require around-the-clock care for the rest of her life.
The patient sued the physician who performed the surgery as well as those who provided care after. The defendant physicians denied liability and wrongdoing. A jury found for the patient and awarded $14.1 million, which was upheld despite an appeal by the defendant physicians.
What this means to you: This case reveals the potential significant liability and injuries that can arise because of a delayed diagnosis, a common form of medical malpractice. Through the course of the litigation, there were three primary issues surrounding the delayed diagnosis.
First and foremost, the defendant care providers argued that the patient did not provide sufficient evidence to prove a diagnosis of Wernicke’s syndrome. The defendant physicians argued that based on the patient’s clinical charts and their observations, it was unclear whether the patient even suffered from this condition. Instead, the care providers argued that the patient’s injuries were caused by a stroke she allegedly had suffered at some point after her first hospitalization. However, one of the defendant physicians admitted during testimony that he was not aware of the existence of Wernicke’s syndrome, especially as a possible complication for patients who had undergone gastric bypass surgery. Furthermore, one of the defendants also acknowledged that at the time he prescribed TPN, he was unaware that prescribing glucose without a thiamine supplement would further decrease the patient’s thiamine levels because thiamine metabolizes glucose.
According to the patient’s expert, the symptoms of Wernicke’s syndrome include vomiting, nausea, and low thiamine levels. Based on this information, the expert opined that the defendant physicians breached the standard of care by failing to accurately and promptly diagnose the patient and to intervene before the harm became irreparable. The patient introduced the results of her blood work, which was taken immediately prior to her discharge from the hospital. The blood tests revealed a severe vitamin B1 deficiency and very low thiamine levels. Based on this evidence and on the known history of gastric bypass surgery, the patient argued that the defendant physicians should have known to prescribe thiamine supplements — and the failure to do so constituted malpractice. Although the defendant physicians offered the alternative cause of a stroke, they failed to produce sufficient evidence to support that theory. On the contrary, all the evidence presented by the patient through her experts, as well as her medical records, supported the theory that had the care providers timely diagnosed the condition, the patient would not have sustained permanent brain damage.
Bariatric surgery requires great skill and expertise in the metabolic ramifications of diverting and limiting the digestion of nutrients in the human body. It is a delicate balance with which many patients struggle, and some succumb to the various complications that commonly arise. Protracted nausea or uncontrollable diarrhea can wreak havoc on the body’s electrolyte balance, glucose levels, blood pressure, and other vital functions. Only a physician who specializes in bariatrics should manage these patients both pre- and postoperatively. TPN plus multivitamin injection is a common order. These two supplements support each other and the patient, who lacks nutrition and the ability to ingest nutrition normally. TPN is predominantly glucose with electrolytes and multivitamins, and often lipids should be given with it unless contraindicated. Fluid overload must be monitored and avoided, as well as the dumping syndrome or rapid loss of fluid in the gut, which may require an emergency response.
Other than the challenges to the alleged failure to diagnose, the defendant care providers raised arguments regarding the trial court’s admission of evidence concerning a physician’s loss of privileges at a hospital and about a settlement with the patient’s daughter. While these presented legal challenges, neither were fruitful in this case to facilitate the care providers’ positions. On the issue of the defendants’ settlement with the patient’s daughter, the court did order a subsequent hearing to determine what benefit, if any, the patient received from that settlement, which may offset her recovery on the jury verdict.
Finally, the court rejected the care providers’ argument that the testimony of their expert concerning liability had been excluded erroneously and that the trial court erred in not allowing for periodic payments on the award for loss of earning capacity. In this case, the patient’s injury was preventable and the care providers failed to introduce sufficient evidence to support their alternative theory. Most challenges raised by the care providers focused on procedural matters, and the court affirmed the $14.1 million award. Given the extent of the injury suffered, coupled with the clear thiamine and vitamin deficiencies that appeared from the patient’s blood work, the court found sufficient evidence to support of the patient’s claim and the jury verdict.
Decided on Oct. 14, 2020, in the Texas Court of Appeals for the Fourth District, Case Number 04-18-00118-CV.