Monmouth County – A $2,700,000 recovery, including waiver of $800,000 lien for medical costs, was obtained in a medical malpractice action where the plaintiff was not properly monitored and left in prone position during Achilles tendon surgery performed under regional anesthesia. Plaintiff experienced respiratory arrest, anoxic encephalopathy, brain damage with very significant concentration and memory deficits and inability to continue working as a hospital CFO.

The 44 year-old male plaintiff was undergoing a surgical repair of a ruptured Achilles tendon, performed under regional anesthesia, specifically by epidural with conscious sedation. It was alleged that approximately 90 minutes into the procedure the plaintiff’s vital signs significantly changed and his oxygen saturation level went from 99% to 59% over the course of several minutes. It was alleged that these changes were caused by respiratory insufficiency that was being experienced by the plaintiff, who was in a prone position for the subject procedure, and that the defendant anesthesiologist negligently failed to monitor the patient and appreciate distress. The declining oxygen saturation rates resulted in the plaintiff suffering respiratory arrest. The plaintiff contended that he suffered brain damage that has left him with permanent and very significant difficulties with short-term memory and communication skills. The plaintiff, who had worked as a CFO for health care system, maintained that he is permanently unemployable.

An oxygen-measuring valve had been placed on the plaintiff’s finger. The defendant anesthesiologist contended that he properly monitored the patient and maintained that he reasonably believed that the changing signs were merely indicative of the “motion artifact” which occurred because the plaintiff’s hand had been moving during the procedure. The defendant also contended that the plaintiff may well have experienced a central neuraxial blockade, which is a phenomenon that occurs with epidural anesthesia on rare occasions and which can cause cardiac arrest for unknown reasons.

The plaintiff countered that the plaintiff had been wearing the device on his finger during the entire 90 minute procedure  and that the vital signs had decreased dramatically on only one occasion, denying that the defendant’s position should be accepted. The plaintiff would have also argued that since the arrest occurred after the vital signs had been depressed for approximately five minutes, the defendant’s position as to this rare complication should be rejected.

The plaintiff further further maintained that shortly before he suffered respiratory difficulties, the defendant anesthesiologist, with whom he had met prior to the procedure, had been replaced with an associate. The plaintiff elicited testimony during the deposition testimony of this associate that he may have been arranging his instruments at the time the vital signs changed. The plaintiff maintained that this factor lent additional support to the plaintiff’s position that adequate monitoring had not been provided. The plaintiff also contended that although the anesthesiologist with whom he met was an attending physician, that he was advised that the informed consent form so reflected and maintained that the hospital should be vicariously liable on an apparent agency theory.

The plaintiff maintained that when he suffered the respiratory arrest, a code was called and that although the plaintiff was revived, he sustained anoxic encephalopathy with significant injury to the brain, resulting in the plaintiff being comatose for nine days and spending the next seven months in various rehabilitation facilities. The plaintiff contended that he has very limited short-term memory and has great difficulties interacting with his wife and children, remembering people that he recently met, and assistance with the activities of daily living.

The plaintiff also maintained that it was ultimately deemed to be permanently disabled due to his continued significant deficits in short-term memory and language/communication skills and the plaintiff would have pursued very significant future income claims. The plaintiff’s wife has been appointed his legal guradian.

The case settled prior to trial for $1,900,000 and a waiver of the $800,000 medical lien.

Plaintiff attorney: Charles A. Cerussi of the Law Offices of Charles A. Cerussi

Middlesex County – On November 15, 2001, 42 year old plaintiff went to his primary care physician complaining of severe headaches, and was given painkillers. On November 16, he went to the hospital complaining of a headache for five days and being unsteady on his feet. A doctor at that hospital ordered a CT scan that showed a colloid cyst on his brain. A radiologist suggested an MRI, but the doctor said the plaintiff had tension headaches. He was prescribed pain medication and sent home.

The plaintiff returned on November 17, complaining of a worsening headache and an inability to move his right leg. A neurologist concluded that he was suffering from a conversion disorder (a form of psychotic episode). After reporting these findings, the neurologist recommended that he be discharged with instructions to have an MRI as an outpatient.

On November 18, plaintiff returned to the same emergency room complaining of headaches and now reported that he had fallen 15 to 20 separate times since being sent home the previous day. Plaintiff was seen by another specialist who noted tremors. He was admitted to the hospital. A November 19 MRI exam showed an aneurysm in the area of the previously discovered cyst. The doctors took no action until November 20, when he underwent a cerebral angiogram that revealed a large aneurysm and subarachnoid hemorrhage. He was then transferred to the hospital and underwent surgery. Plaintiff sustained brain damage.

Plaintiff sued the doctors and hospitals for medical malpractice. The allegations were failure to properly diagnose his condition, failure to respond, failure to be more proactive and to administer faster testing and treatment immediately subsequent to the plaintiff’s hospitalization.

Two of the doctors settled during trial, another was granted a voluntary dismissal during trial immediately following his testimony and the hospital was dismissed from the case by the trial judge during the trial.

The remaining doctors denied that they were negligent in their failure to make a more timely diagnosis and contended that plaintiff’s’ preexisting condition – the aneurysm he presented with – was the cause of his injury.

The plaintiff sustained brain damage from the subarachnoid hemorrhaging and he can only communicate through head nods and hand gestures, and cannot eat or breathe on his own. He now lives in a long-term care facility with 24-hour supervision.

The jury awarded $25 million. During jury deliberation, the attorneys stipulated to $513,273.38 in past medical expenses if the jury returned a plaintiff’s verdict. Therefore the plaintiff netted $25,513,273.38. However, the portion of the verdict attributed to the plaintiff’s preexisting reduced the award by $1,45 million. The award was further reduced by $16,890,000 on account of the portion of the liability attributed to the settling defendants, so the plaintiff netted $7,173,273.38.

Plaintiff’s attorneys: Charles A. Cerussi of Cerussi & Gunn, P.C., Shrewsbury, NJ and Garden City, NY and James Wilkens of Duffy, Duffy & Burdo of Uniondale, NY

Never events are “reasonably preventable” events or occurrences that should never happen in a hospital or healthcare facility.  The National Quality Forum (NQF) defines never events as “serious reportable events” and include surgical events, such as performing the wrong procedure; product or device events, such as contaminated drugs or devices; and criminal events, such as sexual assault on a patient.

The 28 never events, as defined by the NQF are:

• artificial insemination with the wrong donor sperm or donor egg
• unintended retention of a foreign object in a patient after surgery
• patient death or serious disability associated with patient disappearance
• patient death or serious disability associated with medication error
• patient death or serious disability associated with electric shock or elective cardioversion
• patient death or serious disability associated with a hemolytic reaction due to administration of blood products
• patient death or serious disability associated with a fall
• surgery performed on the wrong body part
• surgery performed on the wrong patient
• wrong surgical procedure performed on a patient
• intraoperative of immediately post-operative death in an ASA Class I patient
• patient death or serious disability associated with the use of contaminated drugs, devices or biologics provided by the healthcare facility
• patient death or serious disability associated with the use or function of a device in patient care, in which the device is used or functions other than as intended
• patient death or serious disability associated with intravascular air embolism
• infant discharged to the wrong person
• patient suicide or attempted suicide resulting in serious disability
• maternal death or serious disability associated with labor or delivery in a low-risk pregnancy
• patient death or serious disability associated with hypoglycemia, the onset of which occurs while the patient is cared for in a health facility
• death or serious disability associated with failure to identify and treat hyperbilirubinemia in neonates
• stage 3 or 4 pressure ulcers acquired after admission to a healthcare facility
• patient death or serious disability due to spinal manipulative therapy
• any incident in which a line designated for oxygen or other has to be delivered to a patient contains the wrong gas or is contaminated by toxic substances
• patient death or serious disability associated with a burn
• patient death or serious disability associated with the use of restraints or bedrails
• any instance or care ordered by or provided by someone impersonating a physician, nurse, pharmacist, or other licensed healthcare provider
• abduction of a patient of any age
• sexual assault on a patient
• death or significant injury of a patient or staff member resulting from a physical assault

Beginning on October 1, 2008, Medicare will deny payment on such never events that occur in hospitals or healthcare facilities. Hospitals or facilities cannot only be denied payment, but are prohibited from billing the patient and must absorb any and all costs associated with remedying the damage they caused.  Although physicians are not yet affected by this new policy, it is expected that the benefits will result from hospitals working harder to prevent these errors and making greater efforts to protect their patients.  Medicare is currently seeking a uniform payment policy which will apply to physicians as well.