$15 million verdict awarded to victim of overdose death from propofol

By Jonathan D. Rubin, Esq.
Partner
Kaufman Borgeest & Ryan
New York, NY

Patrick A. Dolan
Law Clerk
Kaufman Borgeest & Ryan
Garden City, NY

Bruce Cohn, JD, MPH
Vice President
Risk Management & Legal Affairs
Winthrop-University Hospital
Mineola, NY

News: The patient was a 45-year-old woman who had been experiencing chest discomfort. Her primary care physician told her to obtain a complete heart check-up at the hospital. The heart check-up revealed that the patient required triple bypass surgery immediately. After a successful surgery, the patient lay recuperating with a breathing tube in stable condition. While recovering, the nurse on shift injected an anesthetic amount of propofol that caused the patient to lapse into a coma, experience unstable blood pressure, and eventually die. A wrongful death action was commenced in malpractice against the hospital by the patient. The jury returned a verdict for $15 million.

Background: The patient began feeling short-winded and was experiencing chest discomfort. Despite the generalized nature of the symptoms, the patient’s primary care physician recommended she receive a full heart work-up. She visited the hospital for cardiac testing. Immediately following the hospital’s examination of patient, doctors informed the patient that a triple bypass was necessary. The hospital determined that the patient’s risk in undergoing such a procedure was 3%. The triple bypass surgery was performed without any complications. Success of the revascularization was confirmed by a post-surgery Doppler flow study. The patient then was sent to rest in the hospital’s Cardiac Recovery Unit. She recovered there for approximately six hours and remained in stable condition. About 7 p.m., family and friends visited the patient. Also at this time, the nurses on duty changed shifts. The new nurse administered propofol to the patient. According to the anesthesiologist, propofol was to be provided as a light sedative only in case her breathing tube caused her difficulty. Even though the patient’s ventilator was set only to assist breathing, the new nurse administered an anesthetic amount of propofol to the patient. This amount caused the patient to immediately lapse into a coma. She experienced respiratory depression and falling blood pressure. While the patient’s condition was spiraling out of control, the nurse waited over 20 minutes before calling for help from any physician or the rapid response team. She repeatedly silenced the alarm bells on the monitor and ventilator. Eighteen minutes after help had been summoned, the patient suffered cardiac arrest and died.

The patient’s estate commenced a wrongful death suit against the hospital in medical malpractice.

Plaintiff alleged that the nurse should never have been hired by the hospital in the first place. The nurse had absolutely no experience in caring for cardiac bypass recovery patients, as this was only her second month on the job. Not only did she not have experience, but she was not trained and her skills were not tested in caring for cardiac bypass recovery patients. The nurse also had no experience or proficiency in administering propofol. Eight senior nurses at the hospital testified that they had never mentored or taught the nurse in any capacity. Plaintiff alleged that the nurse improperly provided care by overdosing the patient with propofol and then, once admittedly realizing the effect it had on the patient, waited 20 minutes before calling for help.

The hospital attempted to justify the care it provided the patient. However, the wrongdoing on the part of the hospital most certainly muddied its defense. First, the nurse disposed of the bottle of propofol, all of the intravenous tubing, and deleted the memory of the computerized intravenous pump immediately after the incident. Also, before litigation, the patient’s husband obtained her medical records from hospital. After the commencement of the suit, a different set of medical records was provided to defense counsel through discovery. Numerous false records were noted in the subsequently provided records. This behavior, combined with the attempted justification of the hospital’s employment of the nurse and her care in light of patient’s 3% risk level, appeared to play against the hospital with the jury.

After a two-week trial and only one hour of deliberation, plaintiff was awarded $15 million. This amount was surprising as the venue is known to be conservative in its awards and because the patient only asked for an award between $5 million and $10 million.

What this means to you: This is a case involving a 45-year-old woman who was unexpectedly diagnosed with coronary artery disease, underwent surgery that was incredibly successful, and then succumbed to a medication overdose due to clinician error.

There is no defense to this case due to a number of issues. What this means to you is that credentialing is of the utmost importance. Proper training of staff cannot be taken lightly either, and the worst thing you can do after a negative outcome is to cause spoliation of evidence and attempt to absolve yourself by altering documentation.

Most cases don’t get worse than this. The surgery was a resounding success, but the patient passed away. A young, relatively well patient who had an isolated cardiovascular issue that was correctable was done in by a drug error. The anesthesiologist ordered propofol for discomfort due to the endotracheal tube. Propofol (Diprivan) is a potentially dangerous drug and well within the conscious of jurors due to the Michael Jackson case. It is a great medication when used in competent hands, but it has a mechanism of action that can go from light sedation to heavy sedation to general anesthesia. It is also not a controlled substance, and it might be viewed as less dangerous than it should be by providers. It is used extensively, not only in the operating room, but in procedure rooms, in post anesthesia care units (PACUs), and in intensive care units (ICUs).

The nurse was clearly not credentialed to use propofol, which was an absolute necessity in this case. She had no real experience in caring for these types of patients, and she should not have been assigned to this area. Compounding the problem was the fact that alarms were purposely silenced, and when the patient was obviously dying, no rapid response team or other assistance was called for by the nurse. The lesson here is that members of the hospital staff must be certified and trained to work in the specialty areas where they are placed. Also, documentation of that training and certification must be up to date.

Perhaps the worst part of the case was the nurse’s disposal of the bag of medication, which erased the memory of the monitoring equipment and changed the records. The hospital then compounded the blunder by participating in covering up. This cover-up clearly escalated the value of the case for the jury and, while it was not defensible before, this situation made it exponentially worse. Jurors might forgive a mistake but they will not forgive an intentional act.

Had this case been handled properly and the mistake disclosed immediately, the case would have cost money, but not at the level seen in the obviously punitive verdict.

Reference

Mobile County Circuit Court: CV-10-900421 (Alabama).