Gastric Bypass Malpractice Yields $14.1 Million Verdict
News: A patient suffered from severe vitamin B1 deficiency following gastric bypass surgery, which caused permanent brain damage. She requires around-the-clock care for the rest of her life.
The patient filed a malpractice lawsuit, alleging the treating physician and his employer medical group negligently failed to recognize the patient’s B1 deficiency. The patient also claimed the surgeon who performed the gastric bypass committed malpractice, triggering the deficiency. A jury agreed, awarding the patient $14.1 million, including future lost wages. The surgeon settled out of court for $200,000.
In October 2020, the 4th Court of Appeals of Texas largely upheld the verdict and rejected an argument that due to a settlement paid to patient’s minor daughter by Metropolitan Methodist Hospital, she was entitled to a $3.3 million settlement credit through Chapter 33 of the Texas Civil Practice and Remedies Code. Pursuant to the Open Courts Provision of the Texas Constitution, the legislature may not restrict the recovery of economic damages in a common law medical malpractice action. However, the court ruled Chapter 33 settlement credits do not restrict the recovery in such a way as to trigger the Open Courts Provision.
Background: On Nov. 28, 2011, a patient underwent gastric bypass surgery. About a month later, she reported complications, including nausea and vomiting. The patient told her doctor she vomited when she attempted to eat solids but could keep down liquids. On Jan. 11, 2012, the doctor performed an outpatient dilation procedure for a suspected stricture related to the bypass surgery. Two days later, the patient was treated for dehydration at the doctor’s clinic. The patient visited the ED the next day with complaints of vomiting, noting she was not improving after the dilation outpatient procedure. In the six weeks since her bariatric surgery, the patient had lost 100 pounds.
On Jan. 16, 2012, a different physician assumed the patient’s care and treated her until she was discharged on Jan. 26. Medical records indicated the patient’s difficulty walking, even with help of the nurses. The nurses noted the patient complained of dizziness, tingling in her fingers, and tight muscles in her shoulder. In addition to vomiting, the nurses further noted the patient had lost control of her bowels; after taking her to the bathroom, patient did not respond to questions, and her gaze became “fixed.” The patient needed additional fall risk elements, including a “tether device,” because of an unsteady gait. When asked why he did not act on the nurses’ notes of the patient’s fixed gaze and unresponsiveness, the physician responded, “It was not reported to me.” The physician admitted he did not read the nurses’ notes.
On Jan. 21, 2012, patient’s surgeon indicated in the medical record to “start TPN”; however, no one started TPN that day. The physician testified he relied on the hospitalist to write the appropriate orders. On Jan. 26, 2012, the patient was discharged with orders for TPN through home healthcare. The physician’s discharge diagnosis was “intractable nausea and vomiting,” “obesity,” and “obstructive sleep apnea.” Following discharge, the patient’s blood results showed she had a “very abnormally low” level of vitamin B1 thiamine.
On March 26, 2014, the patient and her daughter filed a malpractice suit against the physician, the facility, and several other providers. The plaintiffs sued the physician and employer medical facility for negligence in diagnosing, monitoring, and treating nutritional deficiencies during the patient’s hospitalization. The patient sought damages for physical pain and mental anguish, lost wages, loss of earning capacity in the future, and past and future medical expenses. The patient’s minor daughter alleged past and future damages for loss of parental consortium, emotional trauma, and loss of care, maintenance, emotional support, and more. Before trial, the plaintiffs settled with all defendants except the physician, the facility, and one other medical professional.
The jury found in favor of the plaintiffs. However, the patient died while her case was pending before the 4th Court of Appeals. The plaintiff’s attorney argued his client already agreed to forfeit a $434,000 portion of the hospital settlement as a voluntary remittitur to account for any settlement funds that were not put into a special trust or annuity for her daughter, contending the sum is the maximum amount that can be offset under Texas law.
Section 33.011 defines “claimant” to include both the injured person and “any person who is seeking, has sought, or could seek recovery of damages for the injury, harm, or death” of the injured person. The statute’s plain and unambiguous language does not distinguish between the injured person and a plaintiff seeking damages for that person’s injury. Further, the statute does not carve out of the definition of “claimant” a plaintiff seeking damages the injured person could not recover herself, such as damages for loss of consortium. The defendants’ attorney argued the lower appeals court was wrong to find his client was not entitled to a settlement credit under Chapter 33 because doing so would violate the open courts provision of the Texas Constitution. The defense argued the patient and her daughter are one “claimant” under Chapter 33 and have not received less than the full amount of their economic damages. The court held the legislature did not violate the Open Courts Provision by simply statutorily changing the definition of “claimant.”
The Supreme Court of Texas has held a medical malpractice cause of action like the patient’s is a cognizable common law cause of action that “Texas courts have long recognized,” and, in such a common-law cause of action, the legislature may not statutorily restrict a plaintiff’s right to recover the full amount of her economic damages. However, the court ruled settlement credits are dissimilar to prior cases where such a restriction was prohibited and, therefore, settlement credits should be considered.
What this means to you: There are two principal ramifications arising from this decision. (Although arising out of a somewhat obscure law in one state, other states may use similarly obscure or complex laws, so it is always important to consult counsel experienced in the applicable state law). First, in a case involving medical malpractice, a common-law cause of action, the Open Courts Provision does not supersede statutory restrictions on recovery of economic damages via Chapter 33. More specifically, Chapter 33’s settlement credit provisions do not violate the Supreme Court of Texas previous ruling — restricting economic damages awarded to victims of medical malpractice for the general goal of attempting to reduce overall costs to the healthcare industry violates the Open Courts Provision of the Texas Constitution. As such, healthcare providers will be entitled to Chapter 33 settlement credits in medical malpractice cases. Second, the decision allows for settlement credits to be applied for settlement of derivative claims, even if the non-settling plaintiff does not have a cause of action for the same derivative claim. As such, under the case law as it stands today, non-settling defendant providers will benefit from settlement amounts for claims the injured party is not entitled to bring, such as loss of consortium claims.
Finally, note the negligence in this case is one of the most common that risk professionals see — and the easiest to avoid. Reality No. 1: Physicians do not read nurses’ notes. It should not be a common problem, but it is in 85%-90% of cases. Reality No. 2: It is the responsibility of the registered nurse who discovers a change in the patient’s condition to document that and report it to the physician. If that nurse is unable to reach the physician, he or she must hand off that responsibility to someone who can respond and act, usually a covering physician. These steps are documented so that five years later when records are reviewed during litigation, there is a clear story of what happened when, who called whom, what interventions were ordered, and so on.
All this could have been avoided with a phone call. Two points that explain certain aspects of realities one and two are as follows: EMRs are set up for nurses in such a way that it takes the reviewer what seems like hours to find that one-line note of critical information buried between repetitive information required in every nurses’ note every shift. The second point involves the frequent reluctance of nurses to call physicians, especially if the physicians’ first language is not the same as the nurses making the call. Not all physicians are polite, or even cordial, when called, especially during the night shifts. Nurses will avoid calling physicians who yell at or threaten them. These physicians must be identified and counseled.
- Decided Oct. 12, 2022, in the Texas Supreme Court, Case Number 20-0923.
There are two principal ramifications arising from this decision. First, in a case involving medical malpractice, a common-law cause of action, the Open Courts Provision does not supersede statutory restrictions on recovery of economic damages via Chapter 33. Second, the decision allows for settlement credits to be applied for settlement of derivative claims, even if the non-settling plaintiff does not have a cause of action for the same derivative claim.
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