Legal Review & Commentary

Fire in a patient’s throat during surgery leads to death: $2.1 million settlement

By Jan Gorrie, Esq., and Mark K. Delegal, Esq.
Pennington, Moore, Wilkinson, Bell & Dunbar, PA
Tallahassee, FL

News: An 83-year-old retired farmer went in for day surgery to remove a cancerous lesion from a vocal cord. His anesthesia team, combining a higher-than-required concentration of oxygen and a failure to properly operate a laser-resistant tube, started a fire in the patient’s trachea. Complications led to his death and a $2.1 million settlement.

Background: The patient was diagnosed as having a cancerous lesion on a vocal cord, and his physician recommended laser surgery. During the procedure, which was performed on an outpatient basis, the surgical and anesthesia team used a Z-Xomed laser-resistant tube, but failed to follow the manufacturer’s recommendation to place wet pledgets around the cuff. This error, combined with a higher-than-recommended concentration of oxygen, caused a fire in the patient’s trachea. The fire was long and hot enough to melt the patient’s endotracheal tube. Suffering from burn and inhalation injuries, he soon died.

In addition to claiming the medical team failed to properly operate the laser, the plaintiff maintained that the anesthesiology team used an improper oxygen preparation with nitrous oxide as the anesthetic agent. The plaintiff maintained that the combination of the misuse of the equipment and high concentration level of oxygen started the fire. The plaintiff also alleged that once the fire started, the physicians failed to act timely and properly by either turning off the oxygen or crimping the line to limit the supply of fire-fueling oxygen. In conclusion, the plaintiff claimed that the misuse of equipment and failure to appropriately manage the accident once it occurred caused severe inhalation injury resulting in the subsequent development of acute respiratory distress syndrome and multiorgan failure, which lead to the patient’s death.

The defendants contended they acted properly and denied using inappropriate concentrations of anesthetic agents. Additionally, they claimed the decedent died from unrelated hemorrhagic pancreatitis, which occurred after his trachea had healed.

The physicians settled prior to trial for $2.1 million.

What this means to you: Hospitals, surgery centers, nursing homes, and physician offices are full of things that can and do ignite. As this and the subsequent scenarios illustrate, health care professionals must handle flammable and caustic materials with extreme caution and care, otherwise they and their patients might be unintentionally burned.

Even though this particular incident occurred in a physician’s outpatient surgery center, it could have just as easily taken place in a hospital. Regardless of the setting, this case demonstrates the need for the adequate training of staff and appropriate credentialing of professionals.

"Training in the use of new equipment is critical, regardless of whether it is being used on an inpatient or outpatient basis," says Ellen L. Barton, JD, CPCU, risk management consultant, of Phoenix, MD. "While manufacturers clearly have a responsibility to provide instructions and training, health care practitioners also have a responsibility to acquire the appropriate proficiency and experience to be able to operate any new equipment without causing harm. Even in an outpatient setting, all staff assisting in a procedure should be trained in the use the equipment as well as the management of a malfunction or operational error. And, as may have been the case in this scenario, staff training in the outpatient setting may be even more critical than the inpatient setting simply because of the lack of additional resources, such as a designated rescue team. Staff have a right to such training and a duty to refrain form assisting in such procedures or using new equipment if they are not equipped to handle any contingency.

"A related issue is the credentialing of the practitioners performing various specialty procedures and using the specialized requisite equipment. Just as every hospital traditionally uses established credentialing criteria — education, training, experience, and references — for basic clinical privileges, the same should hold true for stand-alone outpatient facilities. Regardless of location, it is equally important to continuously update the list of each practitioner’s specific privileges particularly as new technology and equipment enter the market place. Credentialing should be specific as to what the physician is able to perform and the exact equipment to be used each of the procedures," adds Barton.

"Clearly, the training provided to staff was not sufficient in this instance since the fire seemingly burned out of control. Whether this was because of the manufacturer’s specifications or the trainees is uncertain. Although claims are not known to have been brought against the equipment manufacturer, it is likely that the equipment manufacturer’s instructions for using the laser were clear and available to the health care providers. To avoid such allegations in the future, a facility’s credentials committee must develop and apply appropriate criteria to the awarding of privileges and make sure that their own staff are familiar with the equipment being used. In addition and perhaps fortunate for future patients, various payers also are starting to require such credentialing of professionasl prior to their reimbursing for services," concludes Barton.


Helen Durston, individually and o/b/o the Estate of Everett Durston, deceased, et al. v. Rio Grand Surgery Center Associates, L/O., d/b/a Rio Grande Surgery Center, Michael J. Gossett, CRNA, Jaime Gumucio Viancos, MD, and Keith A. Picou, MD, Hidalgo County (TX) District Court, Case No. C-2957-98-C.