Legal Community & Review-Cover-up of failed surgical repair: $16.8 million verdict

By Mark K. Delegal, Esq., and Jan Gorrie, Esq.

Pennington, Moore, Wilkinson, Bell and Dunbar, P.A.

Tallahassee, FL

News: During a thoracotomy for the removal of a lung lobe, a hole was cut in the plaintiff's diaphragm. The surgeons repaired the hole but did not report its existence. The repair did not hold, and the plaintiff required five months of hospitalization to recover from the incident. A $16.8 million verdict was returned against the two surgeons and their employers as well as the hospital.

Background: The patient was admitted to the hospital to have a cancerous nodule and left lower lobe of her lung surgically removed. The surgeon, who was recruited to practice at the hospital based on his innovative surgical abilities, was assisted by the chief resident for surgery in the thoracotomy procedure. During the course of the procedure, the chief resident cut a hole in the patient's diaphragm; however, the incident was not reported by either the resident or the surgeon, and no other hospital staff or physician seemed to have known what occurred. Nursing staff notations in the medical record included reports of discharge in her stomach tubes.

Nine days later, the plaintiff's stomach herniated through the diaphragm hole and became twisted, which caused the blood supply to her stomach to be cut off. The contents of her stomach spilled into her abdomen, and those complications resulted in 149 days of hospitalization. Because the hole had not been reported, her symptoms of diaphragmatic hernia were not necessarily anticipated.

Residents and interns recognized her downturn but failed to report and ultimately diagnose her condition. Apparently, the hospital protocols relating to residents described their duties as including diagnosis, but none of the residents involved in her care had ever seen or read the protocols and so were seemingly unaware of their duty to diagnose her worsening condition.

Prior to the trial, the two surgeons admitted negligence. The Penn sylvania jury awarded the plaintiff $16.8 million and found the attending surgeon and his employer 55% at fault, the chief resident and the hospital as his employer 30% at fault, and the hospital at fault for the balance (15%) for corporate negligence. Additional litigation is pending because the physicians' excess carriers denied coverage due to alleged lack of notice of the possibility of litigation arising from the incident.

What this means to you: "The first thing that comes to mind is the fact that a 'minimally invasive' technique was selected for this patient's major surgery," notes Mary Susan Keaton, RN, BSN, director of performance improvement and risk management at Summersville (WV) Memor ial Hospital. "As surgical procedures evolve, we are seeing minimally invasive approaches to conventional surgeries; however, these may not always be in the best interest of every patient," she explains.

"Surgeons and their teams must carefully consider the individual circumstances, conditions, and risk factors of each patient and then select the surgical approach that has the greatest chance of success and least opportunity for complications. Minimally invasive techniques often carry greater risk of unintentional injury to other tissue and organs, especially if there is reason to believe that the patient may have significant scar tissue, or in the event a large lesion or other condition requires a significant manipulations of the surrounding structure during the procedure," Keaton says.

"Physician credentialing and privileging may also be issues in the case. Surgeons should have well-documented evidence of their proficiency in performing the procedures which they elect to practice, and the operating room staff should be well-informed accordingly,"she says. "At a minimum, the operating room manager should have a list of the procedures that each surgeon has been granted privileges to perform independently and which require proctoring and by whom. Facilities must have a well-defined process for surgeons to follow when they want to begin doing new procedures."

A tangled web

Another major concern in this particular case is the apparent attempt by the surgeons to conceal the injury. "The old adage of 'honesty is the best policy' still holds true today, especially in health care. Trust is an essential component to patient-caregiver relations, and failure to fully inform the patient of potential risks or treatment options as well as any injuries is a violation of that trust," says Keaton.

"Further, the fact that the surgeons continued to conceal information about the injury even after the patient's condition deteriorated compounded the unfavorable impression that they placed their own well-being above that of their patient," she says.

As for the hospital's liability, it is interesting that none of the operating room staff seemingly were aware of the injury to the diaphragm or — if they were — that they, too, failed to report the incident.

The fact that she was symptomatic for nine days raises questions as to the level of post-operative care. If the hospital staff recognized the patient's symptoms but failed to pursue proper medical interventions perhaps for fear of angering the attending physician at the expense of the patient's well-being, administration needs to acknowledge this and take appropriate measures to correct it, Keaton says.

"All nursing staff and supervisory staff should be well-versed in their facility's physician chain of command and be encouraged to always follow that chain until their patients' needs are met. Egos can be dealt with later," Keaton says.