Legal Review & Commentary

Minister’s vocal cord damaged by feeding tube — $100,000 Nevada verdict

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

News: A feeding tube was improperly inserted into a minister who was recovering from surgery. This led to an extended hospitalization and post discharge vocal cord and lung problems. At trial, he was awarded $70,000, and his wife $30,000, a total verdict of $100,000.

Background: The plaintiff, a retired Air Force chaplain and an active minister in his early 70s, was in the hospital recovering from surgical repair of an aortic dissection. During his recovery, a hospital nurse incorrectly inserted a Dobbhoff feeding tube into his lung and initiated nutrition without confirming proper tube placement with an X-ray. The misplaced tube caused respiratory distress and 12 more days in intensive care with a ventilator.

The patient also claimed that his post-discharge recovery from surgery was extended by several months due to resulting weakness and debilitation. The plaintiff also claimed that permanent lung and vocal cord damage kept him from performing the number of marriage ceremonies he had been performing at an area hotel and casino.

The hospital admitted liability but contested the nature and extent of the plaintiff’s injuries, maintaining that the plaintiff had fully recovered and that he did not suffer any latent voice, lung, or vocal cord damages. The jury disagreed and awarded $100,000 to the minister and his wife.

What this means to you: It is important to realize that once this case got before a jury it became not a question of liability, but how much was that liability worth.

"The hospital admitted that the nurse had failed to provide an acceptable standard of care. From that point it was the jury’s responsibility to determine the extent of injury and the patient’s loses," notes Lynn Rosenblatt, CRRN, LHRM, risk manager, HealthSouth Sea Pines Rehabilitation Hospital in Melbourne, FL.

There was no question that the patient experienced an extended stay and serious life-threatening complications as a result of the nurse’s failure to properly insert the feeding tube.

"Testimony reinforcing the likelihood of the adverse consequences due to the inadvertent introduction of foreign matter directly into the lungs would certainly impress any jury as to the seriousness of such negligence," says Rosenblatt. "Without a doubt, the plaintiff would advance the argument that the nurse did not demonstrate the basic level of competency that would be expected from a staff nurse assigned to a post-surgical unit. This would likely cause the jury to see the amount of the reward as a punitive measure to compensate for the perceived negligence of both the nurse, who was clearly shown to be incompetent, and the hospital, who had failed to train the staff adequately to insure competency."

Insertion of a feeding tube is a fairly common procedure following surgery.

"An essential part of the competency of inserting a nasal gastric feeding tube is to ascertain that the tube is actually in the stomach and not in the lungs. Standard operating policy would determine the manner in which the tube is checked for proper placement following insertion," notes Rosenblatt. "Patients should not be fed until the position of the tube is determined. This is a well-established safety precaution.

"The nurse failed to follow policy and did not safeguard the patient from harm. This situation certainly speaks to the need for adequate education and training of staff and recurring competency evaluations," adds Rosenblatt.

Once a jury determines that the standard of care is breached or the defense admits to such, the plaintiff must make the case for the damages, if any, incurred. Evidence of the incurred and future economic and noneconomic damages would be presented. In this case, the primary consideration in the determination of economic damages would be the retired minister’s ability to continue to perform marriage ceremonies. The use and perhaps the quality of his voice would be put before the jury.

"Any compromise to his diction would certainly be seen as an impediment to his ability to perform marriage ceremonies. It is likely the jury heard his distorted voice and concluded that his voice had been adversely affected by the hospital’s negligence," notes Rosenblatt.

In addition to his ability to earn wages from performing weddings, the jury also would be presented with evidence of the medical costs.

"Although given his age and the fact that he retired from the military, it is unlikely that he was responsible for any of his own medical expenses, and doubtful that the jury took those damages in to consideration in making their award," adds Rosenblatt.

In addition to economic damages, the jury would likely be asked to consider awarding non-economic damages.

"The jury would be exposed to the pain, suffering, and loss to society that the alleged injuries would cause. Noneconomic damages are the most difficult to defend against as it is difficult, if not impossible, to put a dollar amount on any particular person’s loss of function or the impact that loss might have on their spouse. In this case, the quality of patient’s voice was integral part of who the man was and had been during his career," says Rosenblatt.

"In conclusion, if liability is a foregone conclusion, a case of this type may be less costly to settle in mediation, where the plaintiff is put in the position of acceptance of an appropriate level of compensation. Mediation avoids prolonged legal fees and may serve to reduce the exposure by eliminating the unknown jury verdict," notes Rosenblatt.

Reference

• Clark County (NV) District Court, Case No. A-459369.