Legal Review & Commentary: Resident performs negligent biopsy and $2.5 million is awarded

By Jan Gorrie, Esq.
Buchanan Ingersoll Professional Group
Tampa, FL

News: A woman died following a liver biopsy performed at an outpatient facility by a resident physician. The resident was inexperienced and punctured her lung. Unaware of the injury, the resident and supervising physician left the patient’s bedside, and shortly thereafter she aspirated on her own blood and died. Her family members brought suit, and a jury awarded them $2.5 million in compensatory damages.

Background: The 62-year-old Palestinian mother of 10 and grandmother of 25 had previously undergone a successful liver transplant. Several years later, she had abnormal elevations of her liver function. She had undergone liver biopsies in the radiology department under ultrasound guidance without any complications. However, this last time, the biopsy was performed in the gastrointestinal laboratory, where an inexperienced resident fellow performed her biopsy.

Although the facility had a written policy expressly forbidding the performance of liver biopsies on liver transplant patients by inexperienced fellows, the procedure went ahead as scheduled. The resident determined the location of the biopsy using a percussion technique, and he claimed to have confirmed the site by ultrasound measurements. The fellow then inserted the biopsy needle into the patient’s side multiple times. The first time, the resident placed the needle though the patient’s diaphragm muscle rather than directly into the liver capsule. When he fired the biopsy needle, no tissue was obtained. The applicable standard of care when no tissue is obtained required him to redo the liver percussion to ensure he was inserting the needle into the correct location. But he did not reassess the position of the biopsy needle and removed a piece of the patient’s lung.

Following the second attempt, the patient became short of breath. Rather than closely monitoring the patient, the resident and the supervising attending physician left the patient’s bedside. Shortly afterward, she suffocated from aspirating her own blood.

Her family, including her spouse, 10 children, and 25 grandchildren, brought suit against the facility for breaching the standard of care. They claimed that had the liver biopsy been performed as prescribed by an experienced fellow or by the attending physician, the procedure would have been performed correctly and would not have resulted in the patient’s death. The jury agreed and awarded $2.5 million in compensatory damages.

What this means to you: "No doubt this was a preventable medical misadventure from the start. The fact that this was an elderly woman with a known liver transplant and prior biopsies, with an inexperienced resident fellow performing the procedure with multiple attempts in an outpatient setting, is like knowing how the story ends without having to read the book," says Patti Ellis, RN, BSN, LHRM, a risk management consultant in Miami.

"My first thought is whether or not this patient truly gave informed consent. If it was not disclosed that the resident fellow would be performing the actual procedure, then this was not true informed consent, and both the resident and surgeon, or their employer in this instance, are liable," Ellis says.

"Second, this patient was extremely high risk. Although liver biopsies may be routinely performed in an outpatient setting, in a high-risk patient such as this she might have benefited from an inpatient surgical setting under fluoroscopy. In an inpatient setting, she could have been more closely monitored and would have benefited from the availability of staff to promptly identify and assess her signs and symptoms of a bleed and initiate immediate life-saving intervention, which might have resulted in a much different outcome. I have to ask, where was the patient advocate here?" Ellis asks.

"Third, there’s no question that there were breaches in the standard of care. The facility breached [its] own protocol by allowing an inexperienced resident to perform this procedure. The resident breached the standard of care, first by performing the procedure, performing it inappropriately, causing injury to the patient, then failing to identify it and leaving the patient at the bedside. Let us not forget the Captain of the Ship’ doctrine — ultimate responsibility resides with the attending surgeon. In this instance, the surgeon allowed an inexperienced resident to perform the procedure, failed to properly assess the patient postoperatively, and left the bedside as well," adds Ellis.

"Clearly, this case requires peer review as well as a thorough and well-documented root cause analysis and action plan. And, in some jurisdictions, it may well meet the criteria for reporting as a sentinel event to regulatory bodies. The facility needs to go back and review the protocol and make whatever changes are necessary, including immediate stopgap measures, to prevent a recurrence. Although this case had a tragic outcome for the patient and her family, much can be learned from this. It provides an excellent learning opportunity for attending medical staff, residents, and ambulatory surgical facilities, as well as established risk managers and those new to the profession," concludes Ellis.


Mahmoud Zedan, Executor of the Estate of Fahima Seleman v. The Cleveland Clinic Foundation, Cuyahoga County (OH) Common Pleas Court, Case No. 374294.