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

Shoulder dystocia occurs during childbirth when after the head of the child is delivered, the anterior shoulder of the infant cannot pass below the pubic synthesis.  It is diagnosed when the shoulders fail to deliver spontaneously after the fetal head.

It is imperative that during the management of shoulder dystocia that the attending obstetrician not apply excess downward lateral traction, which can cause a brachial plexus injury.  Excess lateral traction is the most common cause of brachial plexus injuries and its utilization fails to meet standards of care and can result in the baby being delivered with Erb’s Palsy.  Traction on the head that is applied by the OBGYN at delivery can cause brachial plexus nerve injury.

Fetal maneuvers can reduce the incidence of brachial plexus palsy and are both safe and effective.  It has been described by Drs. Gurewitsch and Allen of the Johns Hopkins University School of Medicine that fetal manipulation is actually associated with a very low rate of injury compared to maternal maneuvers or traction alone.  Because of this, training in fetal maneuvers should be emphasized and should be prioritized in shoulder dystocia management algorithms.

Drs. Gurewitsch and Allen advised that clinicians need to think counterintuitively – to slow down, but keep track of time and use it wisely.  OBGYNs are advised to wait for a contraction, but not to push or pull, instead allowing the shoulders necessary time to rotate on their own.  They should actively increase their awareness of traction and their tendency to naturally increase it when faced with a difficult delivery.  Use of episiotomy should be only to gain access to perform fetal maneuvers and not as a maneuver in its own right.

Finally, Drs. Gurewitsch and Allen advise that obstetricians are urged not to fear fetal manipulations but rather to become adroit at them, by practicing on all shoulder dystocia delieveries and even on routine deliveries.  Researchers, educators and policy makers need to validate, prioritize and re-emphasize the advantage of fetal maneuvers for management of shoulder dystocia.

A common problem in wrongful death actions in New York and New Jersey is that neither state allows for compensation for what usually is the greatest loss to the decedent’s family, namely the emotional grief and distress that is attendant with losing a loved one.  Both New York and New Jersey limit damages in wrongful death cases to “economic loss” to the decedent’s estate, as well as conscious pain and suffering that was experienced by the decedent prior to his or her actual passing.  Accordingly, it is imperative for attorneys practicing in these states to develop evidence establishing conscious pain and suffering.  This is done by retaining either an expert in critical care medicine and/or a forensic pathologist to review the medical records and the entries of any nurses and/or physicians, as well as the testimony of any witnesses to either an accident or persons who were with the decedent after an act of malpractice was committed.

Conscious pain and suffering awards can be substantial in wrongful death actions and can offset the injustice of the wrongful deaths acts in New York and New Jersey.  By way of example, a jury awarded $2 million for conscious pain and suffering in a medical malpractice action, which award was affirmed by the Appellate Division in New Jersey in 2006.  The jury’s award for pain and suffering was for only four (4) minutes of suffering that occurred after the decedent’s doctors failed to properly drain his gastric contents, causing the patient to choke to death on his own vomit.  The death was described as “horrible,” as if the decedent were “drowning” in his own secretions.  Accordingly, under these circumstances, both the trial judge and the Appellate Division did not find the pain and suffering award excessive.

Therefore, it is clear that the conscious pain and suffering component of a wrongful death action is critical in most cases and can serve to offset some of the inequities of the current wrongful death acts in both New York and New Jersey.

Nursing homes and other long term care facilities have become the focus of scrutiny because of increasing improper care, negligence and failure to prevent pressure ulcers. Patients are caused to suffer pain, disfigurement, decreased quality of life and increased risk of illness and death from pressure ulcers that exist due to the negligence of the healthcare provider and often lead to legal action. Pressure ulcers, or decubitus ulcers, occur when bedridden patients are left in one position for an extended period of time, preventing the patient’s weight to be shifted to avoid pressure. The area of skin that comes in contact with the bed, wheelchair or other object is caused to break down due to the constant pressure and ultimately, the tissues die because of the reduced blood flow to that area.

Pressure ulcers are categorized by severity from Stage I to Stage IV and range from a reddened area of the skin to an ulcer so severe that the muscle and bone, and often times the tendons and joints, become damaged.

Some preventive strategies involve the implementation of patient education, clincian training, strategies in developing communication and terminology materials, provision of toolkits and protocols, behavioral challenges and healthcare provider and patient adherence. Educating patients and their families about wound care and training health care providers in preventing the pressure ulcers is crucial to the prevention. Documentation should be provided to health care facilities and providers which will ensure that they become familiar with all the terms and vocabulary of pressure ulcers and prevention as well as ensure that they develop better skills in sharing information with one another. Toolkits and protocols are also important in that they provide documentation of pressure ulcer staging along with protocols for care and training materials for clincians carrying out the protocols. Behavioral challenges promise to transform acute care pressure ulcer prevention within a short period of time and healthcare provider and patient adherence and compliance will become the vehicle which drives the pressure ulcer prevention strategies.

As prevention strategies and interventions are underscored as a solution to this problem, recognition and education of the pressure ulcers remain the initial significant component of the clinical care of wound treatment.