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By Damian D. Capozzola, Esq.
Law Offices of Damian D. Capozzola
Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services (2004-2013)
California Hospital Medical Center
Tim Laquer, 2015 JD Candidate
Pepperdine University School of Law
News: The patient, a 63-year-old man, suffered from severe neck pain and opted to undergo a high risk pain management procedure in November 2010. The treatment involved bilateral deep and dangerous injections in the C1 and C2 cervical vertebrae, the two vertebrae located closest to the skull.The procedure is rarely performed in the United States. Two pain management anesthesiologists at a hospital were involved with the procedure. Nine days after the procedure, the patient began to feel numbness in his extremities, and he was admitted to a hospital where a serious spinal cord abnormality was detected. The patient spent 13 months hospitalized and developed quadriplegia as a result of the injuries suffered during the pain management procedure. The patient and his wife brought suit against the two anesthesiologists and the hospital, and they alleged that that their actions caused his condition. The defendants denied any wrongdoing. The jury found the primary anesthesiologist and the hospital liable, and the secondary anesthesiologist was found not liable. The jury awarded the patient and his wife a total of $7.9 million in damages.
Background: In this matter, the patient was a 63-year-old man who suffered from severe neck pain and chose to undergo a high risk pain management procedure in November 2010. Two pain management anesthesiologists at a hospital were performed the procedure, which involved bilateral deep and dangerous injections in the C1 and C2 cervical vertebrae. Due to the inherent danger associated with procedures at that level of the spinal cord, this procedure is rarely performed in the United States. At trial, the patient argued that the primary anesthesiologist did not fully inform him of the potential dangers and consequences of the procedure, and he stated that he would not have proceeded with the procedure had he been so informed.
Nine days after the procedure, the patient began to lose sensation in one hand, followed by loss of control in both hands and his right leg. He was subsequently admitted to a hospital where a serious spinal cord abnormality was detected, along with a buildup of fluid at the injection site. As a result of injuries suffered during the procedure, the patient spent 13 months in the hospital, and he became a quadriplegic. He now requires a regular caregiver, suffers continually from painful sensations throughout his entire body, and lives on a liquid diet that he receives through a feeding tube placed in his stomach.
The patient and his wife brought suit against the two anesthesiologists and the hospital. They claimed that the anesthesiologists acted negligently and that the hospital was responsible for their actions as their employer. The patient alleged that the primary anesthesiologist, the director of pain management at the hospital, was negligent by failing to inform the patient of the serious dangers and consequences of the procedure.
For the secondary anesthesiologist, it was alleged that she allowed the procedure to continue with the iodine contrast iohexol, known as Omnipaque, even though the patient had a documented allergy to the substance. However, this claim lacked sufficient evidence to prove that the patient received Omnipaque or that his condition could be contributed to an allergy or trauma. The patient claimed that the hospital was liable as the employer of the anesthesiologists. The defendant, the primary anesthesiologist, attempted to argue that the condition was caused as the result of an "evolving stroke" that coincidentally occurred during the procedure. The defendant hospital denied any liability and instead stated that the primary anesthesiologist, despite being the director of pain management, was an independent contractor and thus the hospital was not responsible for his negligence. After more than a day and a half of deliberation, the jury found that the primary anesthesiologist was 60% liable and the hospital was 40% liable, while exonerating the secondary anesthesiologist of any liability. The jury awarded the patient $6.97 million and awarded $1 million to his wife for loss of consortium.
What this means to you: Enough cannot be said about the importance of informed consent. Dangerous procedures, which often include neck and spine procedures, raise several potential concerns for physicians and hospitals in regard to lawsuits and liability. Hospitals and their nurses, technicians, and ancillary personnel are not responsible for informing patients about the risks, benefits, alternatives,and other elements of informed consent. Informed consent is solely the surgeon’s or other physician’s responsibility. Before a procedure takes place, hospital employees do have a responsibility to ensure that the patient is asked if the physician has informed him or her about the procedure and that this information has been documented in the patient’s medical record. If not, except in an emergency situation, the procedure must be delayed until these tasks are completed. A failure to disclose important information to a patient can create liability for a medical care provider.
The level of disclosure varies based on the nature of procedure.More complicated or dangerous procedures might require a more involved discussion, while a simple procedure with fewer risks might not need such. In this case, the procedure was extremely dangerous, with the opportunity for serious, life-threatening consequences, and unconventional. Court documents revealed that the procedure is not taught in any medical school in the United States and is not part of any training of pain management specialists. For a procedure of this level, complete disclosure of all elements, risks, consequences, and alternatives is extremely important in order for medical care providers to protect themselves from liability. It is easy for patients to look back after the fact and claim that they would not have undergone the procedure having known about these risks, so the only way to prevent this step is by actually informing the patient of the risks prior to the operation and receiving their fully informed consent (ideally in writing so as to eliminate the possibility of denial).
Also, the governing board of the hospital generally is responsible for credentialing physicians. This process is especially important if they are performing unusual procedures. The board usually assigns this task to the medical staff of the hospital. The medical staff, as a peer review body, must ensure that proctoring by other physicians experienced in the procedure in question has been demonstrated. They also must ensure that the procedure is not experimental in nature. A frequent cause for hospital liability is based on the fact that physicians often are considered employees (in states where hospitals are allowed to hire physicians. Theefore, the hospital is liable under the legal doctrine of "respondeat superior," which allows an injured party to recover damages from an employer based on the actions of the employee. It is often difficult to categorize a physician working for a hospital as an employee or an independent contractor (which prevents liability for a hospital).
Ostensible agency also applies in this case. Hospitals often put signage in public places and on procedural consents reminding patients that the physicians are independent contractors and are accountable to the medical boards in their states. The determination is court-made and depends upon a number of factors that vary based on the particular circumstances of the relationship between the physician and hospital. Influential in this case was the fact that the primary anesthesiologist was the director of pain management. An individual’s title, or any contractual agreement, is not dispositive for determining whether that individual is an employee or independent contractor, but being the head of a major division in a hospital can tend to favor a finding of employee, as evidenced here.