What at first seemed the tragic but otherwise unremarkable death of an elderly woman, comedian Joan Rivers, has turned out to be entirely preventable and the result of serious malpractice, according to a federal report and malpractice attorneys.
The Manhattan clinic that treated the 81-year-old celebrity made several serious errors, including failing to identify deteriorating vital signs and providing timely intervention, according to a report by the Centers for Medicare & Medicaid Services (CMS). Rivers died Sept. 4, 2014, a week after an appointment at Manhattan’s Yorkville Endoscopy clinic.
CMS noted these errors that could have contributed to Rivers’ death:
failing to identify deteriorating vital signs and provide timely intervention;
failing to record Rivers’ weight prior to the administration of medication for sedation;
failing to consistently document the dose of Propofol, a sedative, administered;
failing to get Rivers’ informed consent for each procedure performed;
failing to ensure that she was cared for only by physicians granted privilege in accordance with the clinic’s bylaws;
failing to abide by its own cell phone policy by allowing a photograph to be taken of a surgeon and Rivers while she was under sedation.
The string of deficiencies does not surprise Jamie Koufman, MD, an acid reflux specialist and director of the Voice Institute of New York in New York City. She is an expert in the type of surgery that Rivers was undergoing, and she says standards of care are insufficient. The standard of care clearly was not met in the Rivers case, Koufman says, but she says patients are at risk even when the standard is met. Performing complex surgery in an outpatient setting has long drawn criticism, and Koufman says too many physicians offer these profitable procedures without the proper training, equipment, or precautions.
"The standard of care for this surgery is like the standard of care for bloodletting," Koufman says. "Not every patient died of bloodletting either, but that doesn’t mean the standard of care made things safe for the patient."
The Rivers case shows that the longstanding and troubling problem of inadequate pre-surgical examinations of patients continues, says Harry Nelson, JD, partner at Nelson Hardiman in Los Angeles. "I think it results from many surgeons being quick to cut without making sure all of the i’s’ are dotted and t’s’ are crossed. Many surgeons don’t want to have to go through the time-consuming and not-well-reimbursed work of getting all patient vitals and screening thoroughly for risk issues," Nelson says. "It’s much less of an issue in hospitals, which have adopted many safeguards in pre-surgical review in recent years, so the issue is bigger in the outpatient surgery centers."
Nelson’s firm has represented plaintiffs in several cases of patient deaths and injuries that were probably preventable with better compliance for pre-surgical review. There have been proposals for legislative solutions to the issue, Nelson notes, but the most effective approach might be getting patients to understand the importance of, and to insist upon, thorough pre-op reviews, including anesthesiologists’ review.
"Many doctors are only concerned with ensuring the patient is hemodynamically stable, and in some cases not even that, but patients should expect more," Nelson says. "Also, surgery center owners must insist on more compliance policies and procedures to cover the need for better pre-ops."
But the insufficient pre-op review was not the only problem, notes Kenneth D. Powell Jr., JD, a partner in the Medical Malpractice Group at the law firm of Weber Gallagher in Philadelphia. It appears that one or more of the physicians was not properly credentialed, and the institution is always responsible for proper credentialing, he says.
Also, "there are inconsistencies in the documentation concerning the use of Propofol, and the importance of accurate documentation can never be emphasized enough," Powell says. "Failing to accurately record a patient’s weight exposes all healthcare providers involved, particularly when the weight is needed to calculate an appropriate dose of medication."
Citing reports that the physician performed a procedure other than what the patient consented to, Powell says that in most jurisdictions this is a technical battery and the physician is liable even if the patient is not harmed. In Pennsylvania, the institution is not responsible for the battery, but that law might not be the same in other jurisdictions, he says.
"Based on reports in the media, it appears that the clinic had ongoing and systemic problems that were not corrected. Because they were not corrected, this adds to the exposure in the Rivers case," Powell says. "The publicity tends to bring other potential claimants to the forefront who will be able to use these system failures to their advantage."
Yorkville Endoscopy issued a statement in response to the CMS report and noted that it already has "submitted and implemented a plan of correction that addressed all issues raised. The regulatory agencies are currently reviewing the corrective plan of action and have been in regular contact with Yorkville. In addition, the physicians involved in the direct care and treatment referenced in the report no longer practice or provide services at Yorkville."
Jamie Koufman, MD, Director, The Voice Institute of New York, New York City. Telephone: (212) 463-8014.
Harry Nelson, JD, Nelson Hardiman, Los Angeles. Telephone: (310) 469-7260. Email:firstname.lastname@example.org.
Kenneth D. Powell Jr., JD, Weber Gallagher, Philadelphia. Telephone: (215) 972-7908. Email: email@example.com.