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Mass Tort Update
Spinal cord injury caused by excessive attempts to intubate
The patient was severely injured in a car accident. Paramedics administered first aid and immobilized the patient by placing him in a cervical collar and securing him to a rigid board. The paramedics then transported him to a trauma center. The patient had suffered, among other things, closed head trauma, a fractured scapula, a torn right brachial plexus, and a cervical spine injury. Although the patient could no longer move his right arm because of the torn brachial plexus, the patient had some voluntary movement of the left arm, pain reflexes in his legs, and rectal tone, an indication he was not paralyzed below the waist.
Because of the patient's closed head injury the surgeon called for an anesthesiologist to establish an airway in order to reduce the swelling of the patient's brain by means of hyperventilation. The anesthesiologist responded and was informed of the patient's condition by the surgeon. Thereafter, the anesthesiologist made five attempts to establish an airway by inserting a tube through the patient's nasal passage. When these attempts failed, the anesthesiologist made five unsuccessful attempts at oral intubation using a laryngoscope. Following these attempts by the anesthesiologist and one further unsuccessful attempt by the surgeon, the surgeon established a surgical airway by making an incision in the patient's windpipe and inserting a tube. The following day, it was discovered that the patient had suffered a spinal cord injury rendering him a quadriplegic.
After a jury award in favor of the patient, the anesthesiologist appealed claiming he should have received a directed verdict because there was not sufficient evidence to establish the requisite causal connection between his acts and the patient's injuries.
The Appellate Court affirmed the award against the anesthesiologist. The plaintiff's expert had testified to the standard of care for physicians attempting to intubate a patient with a known or suspected cervical spine injury in a situation where establishing an airway was not "urgent." The patient's expert stated that, in his opinion, the anesthesiologist violated this standard of care by inappropriately and excessively attempting to intubate the patient orally. According to the patient's expert, one attempt at oral intubation without moving the patient would have been acceptable, but multiple attempts using a laryngoscope was a violation of the standard of care because such a procedure inevitably causes movement of the patient's head and neck.
As for causation, the patient's expert stated that his review of the medical records indicated the patient did not become a quadriplegic because of the motor vehicle accident. The patient's expert specifically testified that it was his opinion, to a reasonable degree of medical certainty, that the injury to the patient's spinal cord occurred during the oral intubation attempts, and that this injury resulted in quadriplegia and eventual death. Further, the patient's expert testified that, in his opinion, had the anesthesiologist not made multiple attempts at oral intubation. the patient would have walked out of the hospital within two or three weeks.
Lack of anesthesiologist availability
Plaintiff was experiencing labor symptoms, and was admitted to a hospital in a suburb of a major East Coast city. Periodic examinations of the plaintiff suggested fetal distress. The attending nurse called the obstetrician. Within 5 minutes of receiving the nurse's call, the obstetrician appeared. By 8:56 p.m.. the obstetrician had ordered the plaintiff to be moved to a "labor room." In the next 10 minutes, the obstetrician attempted to deliver the baby vaginally. By 9:07 p.m.. the obstetrician called for cesarean section surgery and gave orders to call Anesthesia and two additional surgeons, as well as to prepare the "delivery room" for surgery. The plaintiff was placed in the "delivery room" for preparation while the obstetrician prepared for surgery. By the time the patient and doctor were prepared, no anesthesiologist had appeared.
Initially, the obstetrician decided to wait for the anesthesiologist, but after a while, he began the operation using local Anesthesia. This decision required him to cut into the plaintiff while she was fully conscious, and required him to anesthetize each progressive layer of the abdomen before each incision. The baby was born at 9:34 p.m. Approximately 7 minutes later, an anesthesiologist arrived and administered an anesthetic to permit the doctors to complete the operation on the plaintiff.
The baby was born with complications. Testimony indicated that she had suffered from oxygen deprivation while in utero. As a consequence, she suffers from a seizure disorder and has a reduced mental capacity which borders on mental retardation.
The baby and her parents brought suit against the obstetrician, the anesthesiologist, the hospital, and the anesthesiologist corporation, asserting a number of claims including, but not limited to, negligence and negligent infliction of emotional distress. After a lengthy trial, the jury returned a verdict absolving the obstetrician and the anesthesiologist group of all liability. The jury awarded the plaintiff $2,500 on her claim against the hospital but failed to reach a final verdict on the baby's claim against the hospital. Upon consideration of post-trial motions, the trial court granted a new trial against the hospital only.
Plaintiffs appealed, and the Appellate Court ordered a new trial against the anesthesiologist group as well, because the trial court had not permitted the plaintiff to assert its claims fully. While this case does not involve an Anesthesia mistake, the Appellate Court agreed with the plaintiff that it was negligence for the anesthesiologist group to fail to show up. Note that, in the view of the jury the obstetrician was not responsible for the failure of the anesthesiologist group to show up but he was, nonetheless, sued.
Negligent insertion of Anesthesia needle into patient's eye
The plaintiff instituted this action against an anesthesiologist and an ophthalmologist group (yet another case where surgeons were sued when working with anesthesiologists). The patient was having vision difficulties in his left eye and sought treatment from an ophthalmologist. It was agreed that the patient would have laser surgery. The anesthetic was supposed to be inserted into the tissue surrounding the eyeball, but in performing the anesthetic procedure the anesthesiologist inserted the needle directly into the eyeball itself and injected the anesthetic into the patient's eye. It caused extensive permanent damage including tearing and detachment of the retina and substantial impairment of the patient's vision.
The plaintiffs lawsuit was based on assault and battery for an alleged nonconsensual anesthetic procedure, negligence, res ipsa loquitur, and negligence based on medical malpractice.
Negligently administered spinal
During labor, the plaintiff received an epidural anesthetic administered by an anesthesiologist. The anesthesiologist first attempted to insert a catheter into the plaintiff's upper spinal cord near her neck but was unsuccessful. The anesthesiologist then administered the anesthetic by inserting the catheter into the plaintiff's spine in her lower back. Soon after delivering a healthy baby, the plaintiff began experiencing headaches, sensitivity to light and loud noises, and numbness in her back.
The plaintiff brought suit against the hospital which convinced the trial court that the anesthesiologist was an independent contractor for whom the hospital was not responsible and that the patient had failed to show that her injuries were caused by the spinal. The Court of Appeals sent the case back to the trial court for trial.
The plaintiffs expert stated that, in his opinion, the anesthesiologist's care fell below the standard of care required by physicians administering an epidural. Another expert stated that "Plaintiff's symptoms of low back pain and headaches are consistent with the loss of spinal fluid which accompanied the insertion of the epidural in the cervical region of the plaintiff's back." The Appellate Court held that this was sufficient testimony, if believed by a jury, to support a verdict of malpractice on the part of the anesthesiologist. Whether or not the hospital will be liable will depend on whether the jury believes the hospital allowed people to think that the anesthesiologist was its apparent agent.
Permitting oxygen too close to a hot surgical instrument
During the removal of a cyst, the plaintiff suffered burns on the face, left ear, and shoulders because an instrument being used during her surgery ignited the oxygen being administered to the anesthetized plaintiff. The patient sued the hospital and the surgeon. The case is primarily concerned with the effects of legal maneuvering as the patient dismissed the surgeon and then attempted to sue him again. While the plaintiff consistently referred to the surgeon as a defendant, for some reason, the actual caption of the case omitted the surgeon. The court permitted the plaintiff to amend the complaint because it was clear that the surgeon was being sued and he could not have been unfairly surprised. It was the hospital that named the anesthesiologist as a defendant.
Drug abuse
A State Medical Board filed a petition for an order to enforce a subpoena issued to a hospital for peer review records concerning a physician who was the subject of an investigation regarding an apparent drug problem. The Superior Court granted the petition and ordered the hospital to comply with the subpoena. The Court of Appeals affirmed. The hospital sought further review. The State Supreme Court granted review and held that the investigative subpoena issued by the State Medical Board as part of its inquiry into the conduct of a physician with an apparent drug problem was not "discovery" within the meaning of a statute providing that records of a hospital peer review committee are not "subject to discovery."
In the spring of 1992, several nurses at a hospital observed an anesthesiologist on the medical staff behaving, while on duty, as if he were under the influence of narcotic drugs. The first incident took place one evening in March 1992. The anesthesiologist was on call when a patient required emergency surgery. As the anesthesiologist was interviewing the patient, a nurse observed that his speech was slurred. In discussing the case with him before surgery, she saw that his attention and comprehension were impaired. Nonetheless, the anesthesiologist administered a general anesthetic. Following the surgery, the nurse reported the anesthesiologist's abnormal behavior to her supervisor.
The second incident occurred in late May 1992. A patient was awaiting surgery, but the anesthesiologist could not be found. After being paged several times he arrived and began interviewing the patient. A nurse observed that his speech was even more slurred than during the first incident. She promptly called her supervisor and expressed her "grave concern" about his condition. Thereafter the patient was taken into the operating room and the anesthesiologist administered sedation intravenously.
On another day that month a nurse was trying to take a patient into a bathroom but found the door locked. A visitor told her that someone had been in the bathroom for a long time. She un- locked the door and found the anesthesiologist asleep in the room. He did not respond to his name, and the nurse had to shake him several times. When he awoke, he was disoriented and unsteady; in the nurse's opinion, he "did not behave like someone who had simply fallen asleep." She told him that he was needed in surgery; he responded "OK," and went off to the operating room. She then reported the incident to her supervisor. Later that day, another nurse remarked that the anesthesiologist's behavior in the recovery room had been "strange" and he had had to lay his head on a desk.
Approximately 6 weeks thereafter, a nurse noticed that the anesthesiologist's handwriting was shaky on several occasions and again reported it. She also saw that the anesthesiologist had made an entry in a record-possibly a patient's chart stating that he had broken an ampule of fentanyl during a procedure.
At some point during this period, the Medical Executive Committee - a peer review committee - began to investigate the matter. The anesthesiologist appeared before the committee and admitted he had been injecting himself with fentanyl, which he had taken from the hospital's narcotics supplies.
Based on these facts, the State Supreme Court ruled that the State Medical Board was entitled to enforce its subpoena to examine the hospital's peer review records.
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