Legal Review & Commentary

Failure to treat asthmatic patient results in brain damage: $5 million NY verdict

By Jan J. Gorrie, Esq.
Buchanan Ingersoll Professional Corporation
Tampa, FL

News: A woman having an asthma attack presented at the emergency department (ED). After she was hospitalized for three days, her daughter came to visit and found her non-responsive and blue. The patient was resuscitated; however, she was left brain damaged. The patient’s daughter brought suit against the hospital and attending physician. The jury returned a $5 million verdict in favor of the plaintiff.1

Background: On July 29, the 56-year-old, unemployed woman was admitted to the hospital ED with an asthma attack. She was intubated, placed on a respirator, and given asthma medications. The patient was placed under the care of a pulmonologist and critical care specialist.

From the ED, the patient was transferred to the intensive care unit. At the time, she was on a respirator and had been medically paralyzed and sedated because she was fighting the endotracheal tube. At 6 a.m. on July 31, the patient suffered an episode of bradycardia and cyanosis, which was attributed to mucous plugs obstructing her lungs. She responded to suctioning and the administration of 100% oxygen. X-rays revealed atelectasis (which is akin to pulmonary collapse due to the absence of gas from all or part of the lungs), consistent with additional mucous plugs; however, no additional care was administered as a result of this episode.

On Aug. 1 at 8:13 a.m., the patient’s heart rate increased to 150 bpm from 100 bpm. Although the nursing staff noted this change, the attending physician was not called to evaluate the patient’s changed status. At 8:38 a.m., the patient’s daughter came to the ICU to visit her mother and found her purple and not breathing. The patient’s daughter called for help, and a code was called for respiratory and cardiac arrest.

The arrest was attributed to mucous plugs obstructing the oxygen flow to the patient’s lungs, although oxygen saturation levels via pulse oxi-meter were not documented during this time. The patient was resuscitated, but she suffered anoxic encephalopathy, resulting in severe brain damage.

The patient’s daughter brought suit against the hospital and attending physician for negligence, claiming her mother now was in a persistent vegetative state. The patient exhibited no meaningful level of awareness or consciousness since the cardiac arrest. Her condition is permanent, and she requires constant skilled nursing care, which will be needed for the remainder of her life.

Specifically, the suit claimed that the attending physician departed from accepted medical standards in failing to perform a bronchial lavage through a bronchoscope or catheter as soon as July 31. The suit claimed that this procedure would have loosened and removed the mucous plugs from the patient’s lungs and protected her from pulmonary obstruction. The suit further contended that the hospital personnel failed to call for an evaluation of the patient at the first signs of the dramatic change in her heart rate, which is a known sign of oxygen deprivation, and that the hospital personnel also failed to respond to the patient’s respiratory arrest, which was made known through her daughter in a timely fashion. This delay allowed oxygen deprivation for a more prolonged period. In summary, the suit claimed that these departures from the standard of care were substantial factors in causing anoxic encepholopathy, brain damage and the patient’s resultant vegetative state.

The defendant hospital argued that the nursing staff acted appropriately in evaluating and suctioning the patient, that the staff responded to the respiratory and cardiac arrest in a medically correct and timely manner, and that the patient’s brain damage was an unavoidable complication of her severe asthma.

The attending physician countered that neither bronchoscopy nor bronchial lavage were indicated because the patient’s mucous plugs were located in the bronchioles and in the peripheral areas of the lungs and were not amendable to that particular type of treatment. In his defense, the physician further argued that even if the bronchial lavage had been performed, it would not have altered the patient’s course.

The jury sided with the patient and awarded $5 million; the breakout between the hospital and physician is not known.

What this means to you: Because many Americans live with asthma every day, the understanding that asthma can be a potentially fatal disease is not always accepted or appreciated. "Deaths still occur in asthmatics of all ages, and the failure to recognize the seriousness of an asthma attack may be due to the presumption that the disorder is one of broncho-constriction rather than mucous plugging,"2 notes Melanie Osley, RN, MBA, CPHRM, risk manager at St. Francis Hospital & Medical Center in Hartford, CT.

"Mucous hyper-secretion is often a significant presenting symptom, particularly in status asthmaticus.3 In cases of asthmatic exacerbation that is not responsive to aggressive medical management, patients will continue to produce sputum which leads to mucous impaction, exhibited by prominent rhonchi and wheezes on auscultation.4

The argument has been made that bronchial lavage is associated with a significant excess of respiratory infections.5 However, this must be weighed against the importance of opening up the airway system to provide maximum oxygenation.

In one study,4 clearance of inspissated secretions by fiberoptic bronchoscopy with lavage greatly improved spirometric measurements in refractory asthma with mucous impaction, and did so with no complications," states Osley.

Severe asthmatics who require mechanical ventilation must be observed closely as mechanical ventilation is associated with an increased risk of death in severe asthma attacks.6 "One potential complication of mechanical ventilation is a sudden drop in blood pressure. Because sedation is often necessary in mechanically ventilated patients, the sedation, combined with the sudden release of histamine due to the asthma exacerbation, may cause vasodilation. On the ventilator, when the work of spontaneous breathing is relieved, there will be a drop in the level of catecholamines, which will stop the vasoconstriction that has helped maintained the blood pressure," adds Osley.6

In addition to observing for deteriorating blood pressure, the patient also must be closely observed for accompanying changes in heart rate, as well as changes in oxygenation saturation. An increase in mucus secretions may require frequent suctioning that would cause a temporary decrease in oxygen saturation levels during and shortly after the suctioning. However, oxygen saturation levels that do not return to appropriate levels need to be addressed immediately, and monitoring of oxygen saturation levels at all times in these patients is imperative," observes Osley. "However, in this instance it seems that the hospital staff and physician oversight were woefully inadequate; and the patient was allowed to deteriorate rapidly."

"Accurate assessment of asthma severity is crucial in ensuring a patient’s health and well being. The variable nature of asthma, the poor concordance among measures of asthma severity, and patients’ tendency to underreport their asthma symptoms can contribute to inaccurate severity assessments, which can lead to inappropriate therapeutic choices, such as undertreatment," she adds.7


1. King County (NY) Supreme Court, No. 26338/98.

2. Dornhorst AC. Dangerous asthma. Aviat Space Environ Med 1984; 55(5):422.

3. Groneberg DA, Eynott PR, et al. Expression of respiratory mucins in fatal status asthmaticus and mild asthma. Histopathology 2002; 40(4):367-73.

4. Lang DM, Simon RA, et al. Safety and possible efficacy of fiberoptic bronchoscopy with lavage in the management of refractory asthma with mucous impaction. Ann Allergy 1991; 67(3):324-30.

5. Luksza AR, Smith P, et al. Acute severe asthma treated by mechanical ventilation: 10 years’ experience from a district general hospital. Thorax 1986; 41(6):459-463.

6. Carrol, P. How to intervene before asthma turns deadly. RN 2001; 64(5):52-58, 60.

7. Spahn J, Calhoun WJ, Challenges in assessing asthma severity in clinical practice. Advanced Studies in Medicine 2003; 3(5A):S372-8, S388-9.