Legal Review & Commentary

Patient dies following peritonsillar surgery, and an $865,000 verdict is returned

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

News: A young man went to an emergency department (ED) in the afternoon complaining of discomfort in his throat. Surgery was performed to address an abscess. That evening, after his family had gone home, he suffered from cardiac arrhythmia, went into a coma, and died three days later. His wife and two sons brought suit for wrongful death. The jury entered a gross verdict, including punitive damages against the hospital and attending physician for $865,000, which was reduced by the patient’s contributory fault. The final award was reduced to $432,500.

Background: The 26-year-old husband and father went to the ED with severe throat discomfort. He was diagnosed by a surgeon as having a peritonsillar abscess in his throat. The patient had arrived in the ED around 4:30 p.m. and was in surgery by 10 p.m. The procedure lasted just 15 minutes, during which the surgeon incised and drained the abscess, relieving the accumulated pus. Almost immediately, the patient felt better. To relieve pain, the surgeon prescribed a self-administered morphine pump, postoperatively. Assured that the patient was in good shape, his family went home for the night.

The surgeon had ordered that the patient be checked once each shift — three times daily. At 11:35 p.m., the nurses checked on the patient, at which time he appeared stable. When he was seen again at 12:10 a.m., nurses noted that he was near death. The patient had apparently suffered from cardiac arrhythmia and slipped into a coma. He was transferred to another facility, where he remained in a coma and on ventilator support until his death three days later.

The decedent was survived by his wife and two young sons, who were 2 and 5. The estate brought suit against the surgeon and hospital. The plaintiff argued that it was an error to use a morphine pump, as there was significant risk of a closed airway, markedly increased after an emergency tonsil surgery.

Additionally, the plaintiff argued that the use of a morphine pump was compounded by the failure to order and provide adequate monitoring of its use. The plaintiff claimed the surgeon was negligent for choosing the pump in the first place and then relying on the hospital to monitor the patient in the absence of a more detailed order regarding post-surgery observation and care. With the patient highly vulnerable to sedation, the plaintiff’s expert said that the surgeon should have ordered observation every 30 minutes.

An autopsy on the decedent linked the cardiac arrhythmia to myocarditis or heart disease, particularly noting the abnormal size of the patient’s heart. The surgeon maintained that the monitoring and use of the pump was proper and that the patient’s death was due to his underlying heart condition. The hospital also contended that the death was due to myocarditis, that the nurses not only had followed the doctor’s orders but far exceeded the order to check the patient once per shift and had actually checked the decedent four times within a 90-minute period.

The jury initially reported that it was deadlocked. The trial judge gave orders to deliberate again, after which a verdict was reached, holding both the surgeon and the hospital equally to blame in the decedent’s death. The jury awarded a total of $865,000. The estate received $100,000 for the death, plus $5,000 for funeral expenses and $10,000 for medical expenses. The joint consortium for the two young sons was valued at $600,000. Compensatory damages thus totaled $715,000, and the panel further imposed $75,000 in punitive damages against the hospital and physician. Comparative fault also was considered in the finding, and so the total award was reduced to $432,500.

What this means to you: Sometimes, the facts just don’t add up. Just as bad things happen to good people, bad things can happen to good providers.

"In this case, neither the size of the verdict nor the inclusion of punitive damages makes sense, but bad things happened to a good patient and his good providers. There seems to have been very little, if any, negligence on the part of the surgeon or hospital yet a large verdict was returned against both. And there is no indication that their actions merited punitive damages," says Stephen Trosty, JD, MHA, CPHRM, director of CME and senior risk management consultant for American Physicians in East Lansing, MI.

"The hospital nurses provided monitoring of the patient that went well beyond what the surgeon had ordered. In fact, it was as frequent as what the plaintiff’s expert said should have been ordered [every 30 minutes], and yet the hospital was found liable. Nurses had checked on the patient at 11:35 p.m., at which time the patient appeared stable, and again at 12:10 a.m., at which time he was near death. Unfortunately for this patient, the 30-minute increments seemed to have not fallen at the precise point in which he began to experience difficulties. The physician’s orders to check the patient only once each shift, three times daily, might not have been adequate given the nature of the procedure done on the patient, the possibility of the airway not being completely open, and the use of an anesthetic. Although even though more frequent checking should have been ordered for the night shift, the shift immediately following the surgical procedure, this is actually what was done by the nurses.

"In addition, the physician’s order to check the patient could have been more specific regarding monitoring the oxygen saturation level, verifying the sedation level of the patient, checking the position in which the patient was lying in bed (e.g., on his side or on his back), and assessing if use of morphine could be compromising the patient’s condition or recovery. The need for a physician to specify in his order that these things be done may be influenced by the existence (or lack thereof) of standing nursing procedure and/or hospital policies and procedures relating to the monitoring of patients. If nursing procedure required that these things regularly be done by nurses who check patients after surgical procedures, and/or if hospital policies and procedures required that nursing perform these specific functions as part of patient monitoring after a surgical procedure, then there might not be a need for the physician to specify these things in his order. If, however, there were no standing nursing orders regarding these issues, and no relevant hospital policies and procedures, then the physician should have specified these activities as part of the patient monitoring. But the facts provided in this case record do not indicate that the physician and nurses were negligent in their care and treatment of the patient," notes Trosty.

It is possible, given the location of the abscess and the nature of surgical procedure, that the patient could have experienced an airway that was not completely open, "which is why it was important to regularly monitor his oxygen saturation levels," he states.

There is a question of whether the surgeon and nurses were checking the oxygen saturation level of the patient to be sure that the anesthetic was being absorbed and that there was no airway obstruction preventing the patient from inhaling adequate amounts of oxygen. "If there was a closed airway, or if the oxygen level was low, the morphine pump should not have been used or should have been removed. Nursing staff should have been checking for this and it would have been advisable for the physician to include this in his order," Trosty says.

There is no indication that the patient’s position affected the outcome. "Under the circumstances, the preferred position for this patient was for him to have been on his side as opposed to his back in order to not obstruct the airway. When patients are on their back, especially if they are snoring, the possibility for having an obstructed airway is greater. This would be especially true in the time shortly after the procedure had been performed and the patient was still recovering from the anesthetic used in the procedure," says Trosty.

Nursing staff should have been monitoring the patient’s position, and this should have been included in the physician’s order. "In the case of a 26-year-old healthy male who underwent a 15-minute minor procedure for the incision and draining of a peritonsillar abscess, the use of self-administered morphine pump for management of pain is not unusual or a violation of the standard of care. The procedure likely involved the use of a local anesthetic. In these types of situations, particularly given the age and health condition of the patient, as well as the likely type and quantity of anesthetic used, patients will usually absorb/recover from the anesthetic in a reasonably short period of time. It is not likely to result in major sedation.

"In addition, self-administered morphine pumps, if properly set and regulated, will only release a set amount of medication within a given period of time. No matter how often the patient might push the pump, there only will be a set amount of morphine that will be administered in a given period of time as long as the pump is properly set and regulated. If properly set for the age, health status, and health condition of the patient, use of the pump should not be a deviation from the standard of care. It is used in many similar cases, with monitoring of the patient being done by the nursing staff. It also is important that the pump received regular and ongoing preventive maintenance checks, and that there is documentation to verify that this has occurred. While this is the responsibility of the hospital, there is no indication that the pump malfunctioned or was improperly used," states Trosty.

Just as there was little if any indication of negligence, "there was no evidence indicating the existence of gross negligence, or of a willful or wanton disregard for the well-being of the patient, on the part of the surgeon or hospital. This is the usual standard for awarding punitive damages, and in this case it is difficult to see any basis for having awarded punitive damages," adds Trosty.

In a case where the patient/plaintiff is sympathetic, such as presented here — a seemingly otherwise healthy young man with a young family — providers should consider availing themselves of nonjury alternatives if at all possible.

"This case presents facts where mediation, arbitration, or some other form of alternative dispute resolution might have helped the parties to arrive at a fair and equitable resolution of the case. Allowing both sides to present their evidence to individuals who are better able to objectively evaluate the facts and the applicable medical standards, and who are not as likely to be swayed by emotions, often results in a more valid decision. It also can serve as a way to eliminate frivolous or nonmeritorious cases," suggests Trosty.

With regard to the plaintiff/patient, "another baffling aspect was why comparative fault was found against this patient?" queries Trosty. It appears that the award was reduced by approximately one-half due to comparative fault, but based on the facts we are unable to ascertain what the comparative fault might have been. This is interesting, since it is unusual to have malpractice awards reduced as the result of a finding of comparative fault — particularly if the comparative fault is due to an underlying congenital anomaly.


• Laurel County (KY) Circuit Court, Case No. 98 CI 0321.