Legal Review & Commentary-Pump insertion causes paraplegia: $3.3 million

News: A woman walked into a Florida hospital to have a morphine pump inserted. She left in a wheelchair when the procedure resulted in injury to her spinal cord. The physician group settled for $1 million, and the verdict against the hospital was $2.3 million.

Background: The 60-year-old, married, retired woman had experienced a physical trauma that resulted in her having severe chronic lower back pain. In order to alleviate the pain she was seen at the hospital's Center for Pain Management, where anesthesiologists determined that she was a candidate for a morphine pump. She was admitted to the hospital for what was routinely a two-hour procedure. However, it lasted seven hours because the two physicians were unable to properly place the pump's line in the patient's spinal column. In the course of the seven hours, her spine was punctured approximately 18 times.

The failed attempts to insert the morphine pump line resulted in severe swelling and the severing of her spinal cord. She was discharged from the hospital a paraplegic. Her husband cared for her for the next three years, tending to her every need, including bathing, cleaning of her bowels, and dressing, and then she died of unrelated complications.

The plaintiffs alleged that after two hours, the anesthesiologists should have stopped the procedure and brought in a consulting neurosurgeon. The physicians settled the suit for their policy limit of $1 million. However, the plaintiff's suit against the hospital proceeded to trial. At trial, the plaintiffs claimed that while the physicians were not actually employed by the hospital, they were agents of the hospital inasmuch as the hospital's representations in their advertisements for the Center for Pain Management, their signage, and their requirements for admission would lead reasonable people to believe that they were being treated by employees and/or agents, real or apparent of the hospital.

The hospital maintained that the anesthesiologists were independent contractors and that the hospital was immune from the physicians' mistakes. The jury saw it differently and delivered a $2.3 million dollar verdict against the hospital. Initially, there was discussion of an appeal, but that has not yet occurred.

What this means to you: The facts in this case suggest the hospital employees, specifically the nursing staff, were found to be in compliance with applicable policies and procedures and were not negligent in performing their duties. In Florida, there are no statutory prohibitions that prevent hospitals from being liable for the actions of physicians. Accordingly, after the plaintiff settled with the two physicians for their medical malpractice insurance limits of $500,000 each, the plaintiffs proceeded with their suit against the hospital under the theory of vicarious liability. Vicarious liability is defined as legal responsibility for someone else's actions, which is more commonly found in employer/employee situations.

The plaintiffs were able to argue that while the physicians were not employed by the hospital, their practice of pain management was inexorably linked to the hospital. This link was based in part on the hospital's development and advertising of the Center for Pain Management. In addition, patients of the Center for Pain Management only gained admission to the hospital's center and subsequently, if necessary, admission to the hospital if they met the criteria established by the physicians even though they were not actually employees of the hospital.

Vicarious liability is one of the most difficult risk issues in the health care arena, particularly when facilities are attempting to provide a full range of services in an effort to gain market share. As this case demonstrates, the increased use of contracted agents likewise increases the risk of vicarious liability. This is particularly true in instances where it is not readily apparent to the general public that a contracted physician's practice is separate and distinct from the hospital.

"Risk managers should be involved in the formulation of business plans and business decisions for their facilities. In making business plans and decisions, careful consideration must be given to the benefits of a contracted service. A facility's risk manager should be involved in the identification, assessment, and evaluation of any potential risks that accompany such arrangements," says Cheryl A. Whiteman, RN, MSN, HCRM, risk manager, state of Florida, CIGNA HealthCare of Florida.

Reference

Robert Karstetter, as personal representative of the estate of Eleanor Karstetter, deceased, and Robert Karstetter, individually v. Adventist Health System/Sunbelt, Inc., d/b/a Florida Hospital, Orange County (FL) Circuit Court, Case No. CI97-4422.