Physician Legal Review & Commentary:

Case involved controversial procedure: manipulation under anesthesia

$38.6 million awarded for botched procedure that resulted in permanent brain injury

News: A man and his two daughters were awarded $38.6 million against two doctors for their negligence in conducting a controversial procedure under anesthesia on the patient. The controversial procedure, manipulation under anesthesia, caused a loss of oxygen to the brain, which resulted in permanent brain injury to the plaintiff.

Background: The patient's diabetes doctor and a facility anesthesiologist performed the controversial procedure of manipulation under anesthesia on the patient. Manipulation under anesthesia is claimed to improve articular and soft tissue movement using a controlled release, pressure point manipulation, and mobilization while the patient is under moderate to deep sedation. The doctors connected the patient to a heart monitor and began to manipulate his feet. Eleven minutes into the operation, for unknown reasons, the patient lost oxygen and his heart rate slowed. When the paramedics arrived, the patient had no pulse. At the hospital, the doctors were able to restart his heart, but his brain had been deprived of oxygen. The patient is now in a vegetative state.

Plaintiffs, the patient and his two infant daughters, asserted that the heart monitor's alarm sounded during the procedure, but the anesthesiologist twice ignored the monitor and turned it off. The Department of Health also investigated and found that the records from the operation were incomplete. According to plaintiffs' attorneys, the patient's diabetes doctor admitted during trial that the procedure should not have been performed on the patient.

The anesthesiologist argued that the original cardiac arrest was not from anesthesia or oxygen, and once the patient's heart stopped, his chances of full recovery became remote, regardless of the emergency response. The doctors also attempted to shift blame onto a third doctor; however, the jury found that this doctor was not responsible.

After a monthlong trial, the jury found the doctors negligent, not only by a "greater weight of the evidence" standard, but also by "clear and convincing evidence." The jury awarded $23.6 million to the patient to cover medical expenses and another $5 million for pain and suffering. His two daughters, now 6 and 9, were awarded $5 million each for the loss of their father's companionship.

Finally, the jury's finding that the doctors were guilty of medical malpractice under the "clear and convincing standard," triggered the "Three Strikes" Florida constitution amendment, which strips medical licenses of doctors who lose three medical malpractice cases under this higher standard.

What this means to you: This case has multiple issues with the physicians, the procedure, and the explanation of what happened and why. It is a sympathetic case. A young patient who is a parent and who went in for a supposedly simple (yet controversial) procedure suffered brain damage. Given the facts of this case, it is not surprising that a large verdict was rendered.

Again we are faced with jury members who will use their own sense of reasonableness and fact analysis to come to a conclusion as to the liability of the defendants. The first issue is the procedure itself. This procedure was not cardiac surgery or neurosurgery that can be risky but lifesaving. This procedure was manipulation under anesthesia, which is said to improve intra-articular and soft tissue movement. Clearly the patient is an adult who consented to the procedure, but the jury is less likely to be forgiving of a physician with a bad outcome if the surgery was necessary as opposed to an elective procedure. It is simply human nature to feel worse about a bad result in a procedure in which the patient should not have been at risk.

The anesthesiologist argued that the cardiac arrest suffered by the patient was not due to anesthesia or lack of oxygen. This argument is what some trial lawyers call the "stuff-happens" defense. We don't know why the patient suffered the complication, but things just happen. Jurors don't like this argument, as it goes against their common-sense demand for logic. If the doctor who is a trained professional and was in the room can't tell them why something happened, it becomes difficult to for a lay person to accept the complication.

There also is an expectation that the anesthesiologist should have been able to do something to get the patient's heart started after the arrest. This task is what we assume the anesthesiologist is there for: to monitor the patient and to intervene if something goes wrong. Upon the arrival of emergency medical services, the patient had no pulse, and the patient's heart was not able to re-start until arrival at a hospital.

This case has a number of complicating factors. The patient's diabetes physician apparently admitted under oath at trial that the procedure should not have been performed. It becomes difficult if not impossible to defend the care during a procedure that was not indicated.

Even worse, the family raised an allegation that the patient's monitor alarm sounded during the procedure, but the alarm was twice silenced by the anesthesiologist. How they learned of this silencing is unclear from the case report, but it might have been from the testimony of other people present or inferred from the record. Unfortunately, the record that had the potential to support the anesthesiologist did the opposite. The state Department of Health investigated and found that the records were incomplete. The anesthesiologist testified that due to the emergency, he did not have time to complete the record and upon returning to the surgical center, the staff would not allow him to finish his entries.

An incomplete medical record or one in which it appears that the entries might have been modified after the fact is a red flag to the jury or judge sitting in judgment of the facts of the case. It calls into question the veracity of the physician who wrote the record and, by extension, anyone involved with the case.

Finally, there is the added credentialing issue that might have not been raised in front of the jury, but it is meaningful from a risk management perspective. The anesthesia physician had prior instances of questionable medical care including two other patients who died while being monitored by this same anesthesiologist. This background clearly calls into question the amount of due diligence done by the surgery center in allowing the physician to administer anesthesia to this patient.

There is an unusual provision in Florida law known as the "three strikes" rule that has the potential to strip a physician of his or her license after three adverse medical malpractice findings. It is notable that for this provision of law to apply, the jury must find the physician not just liable under a preponderance of the evidence theory, which is common, but by clear and convincing evidence. It is difficult to say whether a jury understands the difference between these two. The counsel for the plaintiff had to prove only the lesser standard in order to win the case and obtain a rather larger verdict, but the family was apparently intent on a finding using the higher standard that would trigger the three strikes rule.

Consider the details of this case: The procedure is controversial under the best of circumstances, and elective under all circumstances. It was performed on a patient whose own physician concedes should not have had it. The practitioner had a questionable record. You add in a record that is incomplete, combined with a highly sympathetic patient. When something goes wrong, providers are likely to lose in a significant way.

This case is difficult for all of the reasons stated, and it also makes it clear that as the defense issues mount, the likelihood of success plummets.

Reference

Case No. CACE09007837, 17th Judicial Circuit, Broward County, FL.