Physician Legal Review & Commentary

$1.2 million verdict to parents of a 5-year-old boy who suffered anoxic brain injury during tonsillectomy

News: A Dauphin County jury awarded the parents of a 5-year-old boy $1.2 million in damages against a physician for failing to appreciate the then 11-month-old patient's enhanced risk for respiratory failure that resulted in anoxic brain injury subsequent to the performance of a tonsillectomy. The patient presented to the physician's otolaryngology practice for tonsillectomy and adenoidectomy after preoperative testing determined that sleep apnea, a condition that interferes with breathing during sleep, was causing respiratory problems. Postoperatively, the patient experienced breathing problems and remained in the recovery room for five hours due to low blood oxygen levels. Subsequently, the patient was found without a pulse and required resuscitation. Plaintiff's counsel contended at trial that the cardiac arrest, brain injury, and developmental delays incurred by the patient would not have occurred if the physician had properly monitored his blood oxygen levels postoperatively.

Background: In 2007, the then 11-month-old patient presented to a physician's otolaryngology practice for a tonsillectomy, adenoidectomy, and insertion of ear tubes after preoperative testing revealed that sleep apnea was accounting for nearly 50 breathing episodes per hour. During these episodes, the patient's blood oxygen levels dropped, and the patient's mother feared "he might stop breathing during his sleep."

According to the sleep study performed by the physician, the patient's Apnea Hypopnea Index (AHI) reached 43, a level that is four times higher than classified severe sleep apnea, which placed the patient at an increased risk for postoperative respiratory complications. However, plaintiffs (the patient's parents) contended at trial that the physician failed to appreciate this respiratory condition and placed him on a regular-floor room rather than intensive care. Additionally, plaintiffs alleged that the physician ordered the pediatric nurses to observe the patient as they would any other patient (every four hours), neglected to conduct sufficient postoperative physical exams, and ordered that the child's pulse oximeter (the finger-mounted device used to measure blood oxygen) be prematurely removed. In its place, the physician ordered a regular heart and respiratory rate monitor.

According to plaintiffs, the patient was last observed by pediatric nursing staff at 4 a.m., and no record of his oxygen saturation was maintained for the next hour and 45 minutes. At 6:40 a.m., the patient was found not breathing and without a pulse. Plaintiffs maintain that the patient was resuscitated, but his brain was without oxygen long enough to cause visible injury on an MRI. Moreover, plaintiffs claimed that subsequent to his code, the patient was "like a newborn" and was unable to lift his head, sit up, move, or talk. Furthermore, plaintiffs presented pretrial evidence that one in four children who have an AHI in the 40s and oxygen desaturation below 80 have some type of respiratory problem. In addition, the plaintiffs contended that there is a direct correlation between a child's age and respiratory issues: the younger the child, the greater the risk of a respiratory problem.

At trial, plaintiffs presented evidence that as a result of his cardiac arrest and anoxic brain injury, the patient is developmentally delayed and "about a year and half behind his peers in many skills." However, the defendant physician argued that the patient, according to his preoperative sleep study, was driven to breath by decreased blood oxygen saturation, which is typical in obstructive sleep apnea patients. Furthermore, the defendant physician attributed the patient's respiratory distress as a result of hypoglycemia and/or acute aspiration, which would not have been identified by blood oxygen saturation. In addition, the defendant physician argued that admission to the intensive care unit is not the standard of care and nurses did not observe signs of respiratory distress. Nonetheless, after a seven-day trial, a jury awarded the parents $500,000 in non-economic damages and $686,170 in loss of future earning capacity.

What this means to you: Needless to say, a case such as this, with such a significant injury and long-term sequelae, has a very high sympathy factor and settlement value.

This pediatric patient, who suffered from significant sleep apnea documented by diagnostic testing, was recommended to undergo a tonsillectomy, adenoidectomy, and insertion of ear tubes by his otolaryngologist. This procedure is a viable option because the removal of the tonsils and adenoids opens the throat area, which allows oxygen to flow more freely during inspiration and ultimately can alleviate sleep apnea.

Once the decision was made to allow this patient to undergo this surgery, it is important that the anesthesiologist, as part of the surgical team, be made aware of the high-risk nature of this infant and provide an adequate assessment and safety measures regarding intubation and oxygenation intraoperative and postoperatively.

Once in the recovery room, the patient was monitored for five hours. The recovery room nurses are trained to provide intensive care and can provide a higher level of care and postoperative monitoring. Of importance in this and in any surgical case is the postoperative handoff when the patient is admitted to the recovery room. The nurses and other caregivers need to be aware of any information regarding the outcome of the procedure and whether the procedure was routine or there were issues encountered intraoperatively.

When the patient's oxygen levels decreased during the recovery period, this information should have been immediately escalated and communicated to the physician in charge. It would be important to know if the patient still was intubated or if the endotracheal tube had been removed. If the patient was intubated, then the oxygen administration easily could have been manipulated and monitored. If the patient was extubated, maybe it was premature to do so. Any swelling of the trachea could have contributed to low oxygen levels and would need to be treated as an emergency. If any change in respiratory or mental status was noted at any point during this child's recovery, then it was incumbent upon the caregivers to escalate that information to the attending physician.

In most hospitals, the anesthesiologist is the "captain of the ship" in the recovery room and would make the ultimate decision, based on his/her assessment and the patient's overall needs, what would constitute an appropriate transfer. The development of discharge criteria regarding the transfer of patients from the recovery room to another area of the hospital allows for consistent decision-making among the healthcare professionals.

In this case, because the infant had episodes of hypoxia while in the recovery room, a prudent decision would be to transfer the patient to a higher level of care, such as the ICU, where strict monitoring of oxygen and other indicators would be done. Then appropriate monitoring for any type of respiratory or metabolic emergency could be quickly identified and managed. Once the patient was placed on a regular pediatric floor, with limited monitoring and physical assessment, the die was cast.

In essence, proper handoff by the surgical healthcare team, an adequate postoperative physical assessment conducted by all caregivers involved, adequate and timely communication of abnormal findings to the "captain of the ship," established recovery room discharge criteria, transfer to the appropriate level of care to include a verbal handoff to the transferring unit, were required by all the healthcare professionals involved to avert this tragic event.


Graham v. Shapiro, 2009-CV-14003-MM, Dauphin County, PA (2012).