Legal Review & Commentary

An obstructed airway causes permanent brain damage: $24 million verdict in Kentucky

By Jan J. Gorrie, Esq., and Blake Delaney, Summer Associate
Buchanan Ingersoll PC, Tampa, FL

News: A boy who broke his arm playing football was taken to an emergency department (ED). His broken bone was reset, and he was transferred to a recovery unit. The boy’s airway became obstructed, which went unnoticed by his anesthesiologist, and he suffered a hypoxic-ischemic injury, resulting in permanent brain damage. The plaintiff brought suit against the hospital and the anesthesiologist, alleging negligence for failure to timely intervene, inadequate staffing in the recovery unit, and negligent removal of his translaryngeal endotracheal tube after the procedure. A jury found both defendants equally liable and awarded $24.2 million in damages. The hospital had settled with the plaintiff prior to trial, and the court assessed a $12.1 million judgment against the anesthesiologist.

Background: A 14-year-old boy broke his arm while playing football in November 1999, and his mother rushed him to a local ED. Instead of performing surgery to align the broken bone via an open reduction, medical personnel set the fracture using a closed reduction, eliminating the need to cut through the patient’s skin. Because the boy had a full stomach, the orthopedist performed the reduction the next morning. The orthopedist, assisted by an anesthesiologist, took 20 minutes to perform the procedure, which was uneventful.

Afterward, medical personnel found the patient alert and transferred him to the post-anesthesia recovery unit. The anesthesiologist briefly evaluated the boy and observed his condition to be stable. She wiggled the boy’s toe, received a response, and left to attend to another surgery. But the anesthesiologist failed to realize the boy had an airway obstruction. The boy sustained a hypoxic-ischemic injury, characterized by a reduction of oxygen in, and blood flow to, his tissue and major organ systems. Nurses tried to call a resuscitation code, but devastating damage already had occurred.

The boy is in a permanent state of minimal consciousness. He is aware of his surroundings, but unable to communicate, requiring 24-hour-care for the rest of his life, including daily removal and cleaning of a tracheal tube. The injury reduced the teen-age boy’s life expectancy to fewer than 50 years.

The plaintiff filed suit, alleging negligence by the hospital and the anesthesiologist. He first argued that the standard of care required that the anesthesiologist wait until he was stable and connected to the proper monitors before leaving the recovery unit. The plaintiff pointed to the hospital medical record, which showed that the anesthesiologist failed to chart monitor readings until the next day. By ceasing direct observation too soon, the plaintiff alleged, she breached her duty. The boy also established causation by arguing that, had the defendants properly monitored him in the recovery unit, they would have detected his obstructed airway. Because the obstruction most likely occurred after the patient arrived at the recovery unit, the anesthesiologist’s failure to timely intervene was directly responsible for the patient’s extensive, disabling damages.

The plaintiff also raised the possibility that an error while removing the translaryngeal endotracheal tube led directly to his damages and that inadequate staffing in the recovery unit led to the failure to timely detect his airway obstruction.

The hospital initially defended the suit, relying on numerous experts to argue that its conduct did not fall below the minimum standard of care. However, as the trial date loomed near, the hospital entered into a confidential settlement agreement with the plaintiff. The anesthesiologist, on the other hand, vigorously defended herself, arguing that her care was proper. She pointed out that, before leaving the recovery room, she had wiggled the boy’s toe to confirm his alertness. The anesthesiologist also argued that the patient’s injury was not the result of negligence.

At trial, even though the hospital already had settled with the patient, the judge instructed the jury to apportion responsibility between the hospital and the anesthesiologist, as Kentucky law requires an allocation of liability if more than one defendant is found responsible because defendants can be held liable for only their share of damages. The jury found both parties 50% liable. Its $24.2 million damages award represented the maximum requested for the plaintiff’s past and future medical expenses, inability to earn a living, and future mental and physical suffering. The trial judge assessed damages of $12.1 million against the anesthesiologist and her employer.

What this means to you: This case exemplifies the importance of establishing and utilizing express, written policies and procedures.

"Had the direct care responsibilities attributable to both the anesthesiologist and the hospital been clearly outlined, this unfortunate injury possibly could have been avoided," says Lynn Rosenblatt, CRRN, LHRM, risk manager, HealthSouth Sea Pines Rehabilitation Hospital (Melbourne, FL).

As part of a typical anesthesiology procedure, the physician’s duties probably would include monitoring the patient until the recovery room staff could establish mechanical monitoring. She suggests that hospitals should develop a checklist of vital indicators that the physician and the recovery room staff could utilize to assure that a patient has fully recovered from anesthesia. This checklist also should specify predetermined indicators to be met before the anesthesiologist relinquishes her responsibilities and leaves.

In this scenario, Rosenblatt points out uncertainty surrounding the indicators. Wiggling a toe seemingly has little to do with ensuring a fully patent airway; the patient’s response may have been more reflexive than indicative of recovery. "Of course, it is also unclear whether the young boy exhibited any of these indicators because the anesthesiologist did not make her entries in the patient’s medical chart until the next day," she says.

Also of concern is the apparent delay by recovery room staff in assessing the patient and connecting monitors. "In addition to ensuring that the basic safety net of mechanized monitoring was effectively in place before she departed, a prudent anesthesiologist would continue to monitor the patient manually until the nursing staff assured her that the patient was connected to the monitors. Again, a written procedure should establish the mechanism for relinquishing care to another provider," says Rosenblatt.

In addition to implementing effective written policies and procedures, a health care facility must ensure that the recovery unit is equipped with the necessary resources. Of prime importance is an efficient, properly trained nursing staff.

"A risk manager should investigate the nature of training provided in this recovery unit," says Rosenblatt. "A properly trained staff would never allow a patient’s airway obstruction to go undetected. In fact, part of the very basic standard of care includes ensuring that all post-surgical patients have stable vital signs and effective oxygen concentration rates."

Another available resource is advanced life support, which Rosenblatt suggests should be the norm in all anesthesia recovery areas in conjunction with available physicians to assist the nursing staff at a moment’s notice.

In the event that an injury occurs at a health care facility, a root cause analysis should be completed as part of the facility’s investigation.

"In this scenario, an investigation by the medical staff oversight committee should look into the time intervals between procedures, the number of surgeries booked to the same anesthesiologist, the assessment responsibility of the recovery room staff, and with whom the ultimate responsibility for an injury of this type lies," Rosenblatt says.

"Other important questions involve whether the anesthesiologist had backup support that could assist the nursing staff immediately in a crisis and whether such assistance was provided for by means of the hospital’s contract with the physician group or by means of whatever nursing staff happened to be available at the time.

"In addition, the committee should scrutinize the individual conduct by the anesthesiologist. By investigating whether the anesthesiologist was fully qualified, whether she was recently credentialed, whether there had been previous problems with her intubations, and whether staff was aware of the symptoms of translaryngeal/tracheal edema, the committee should ultimately determine why the anesthesiologist left so quickly following the procedure. Certainly, her failure to chart at the time of completing the procedure contributed to her failure to properly assess the patient," notes Rosenblatt. "It indicates a sense of urgency on her part to move on to the next case, and it speaks to her failure to properly and adequately document her conduct, which is generally required at the time of completion of a procedure. In fact, had she remained to see through her full responsibilities, she would have been available to recognize and successfully deal with an airway obstruction."

Nevertheless, the anesthesiologist’s negligence does not relieve the hospital from sharing in the blame in this situation. Also contributing to the injury was the hospital’s failure to ensure the patient’s medical stability before the anesthesiologist left, and the hospital’s failure to adequately and appropriately provide staff that was able to recognize and handle any emergency that may arise.

"After all," concludes Rosenblatt, "the recovery room is critical care."


• Jefferson County (KY) Circuit Court, Case No. 00 CI 1471.