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By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola
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Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services
California Hospital Medical Center
Los Angeles, CA
Morgan Lynch, 2018 JD Candidate
Pepperdine University School of Law
News: In April 2012, a man sought medical care for his ascending aortic aneurysm. He underwent open-heart surgery, during which the physician performed an unexpected right coronary artery reimplantation. Before the patient’s chest was closed and while he was still bleeding, the physician exited the operating room, leaving a physician assistant to complete the surgery. The patient did not consent to a physician assistant performing any portion of his surgery. The loss of blood from the surgery caused the patient to enter a coma, resulting in his placement on life support.
The patient’s wife and son had no knowledge of the botched surgery until they received an anonymous phone call. They filed suit against several medical professionals, the hospital, and several professional medical organizations. After a lengthy trial, the plaintiffs received a $68 million verdict against the physician who exited the operating room.
Background: On April 1, 2012, a man consulted with a physician and other healthcare professionals at a medical group and medical center regarding his ascending aortic aneurysm. The following day, the physician performed open-heart surgery on the patient. At some point before the patient’s chest was closed, and while the patient was still in an unstable condition, the physician left the room. As a result, the surgery was completed by a physician assistant while the patient was still bleeding. Also, the physician performed an unanticipated and unexplained right coronary artery reimplantation.
The patient suffered severe blood loss and cardiac arrest, and was placed on life support. The patient remains on life support as of the writing of this article. The patient did not consult with the physician assistant prior to the surgery and never consented to the performance of the surgery by a physician assistant. No person acting on behalf of any parties involved disclosed who finished the surgery. The plaintiffs were informed of this by an anonymous phone call to the patient’s son on Oct. 26, 2013.
The patient’s wife and son filed a complaint on Dec. 23, 2013, in the California Superior Court against the medical center, the physician, and the medical group. The claims included negligence, corporate negligence, negligence per se, breach of fiduciary duty, battery, loss of consortium, fraud/intentional misrepresentation, concealment, negligent misrepresentation, and aiding and abetting.
Two additional physicians and an anesthesia group were added as defendants. Those parties filed an answer with affirmative defenses that included the statute of limitations, assumption of risk, comparative negligence, and statutory damage limitations. The physician and medical center claimed in a summary judgment motion that there had been no fraud, concealment, or misrepresentations. The judge granted summary judgment on those specific issues, resulting in a settlement between those parties and the medical center.
A three-month jury trial proceeded only against the physician. The trial took place in three phases to determine liability, damages, and punitive damages. The jury determined that the physician was negligent, that the negligence was a substantial factor in causing harm to the patient, and that the physician acted with malice. The plaintiffs were awarded a total of $68 million, comprising $5.6 million for medical expenses, $50 million for pain and suffering, and $12.4 million for punitive damages.
What this means to you: While this case is extreme in its facts — a physician walking out unexpectedly prior to completion of surgery — it reveals lessons applicable to all medical professionals. Physicians and hospitals are responsible for patients at all points in their care, whether the patient is preoperation, mid-operation, or postoperation. It goes without saying that the level of attendance and monitoring necessary at these various stages of care vary, yet physicians may have differing viewpoints as to the specific amount of monitoring needed for a specific patient. Ultimately, this becomes an analysis of the standard of care: what a reasonable, careful practitioner would use in the same or similar circumstances. When it is obvious that a reasonably careful practitioner would not walk out mid-operation, a physician’s decision to do so is patently negligent.
For employers and hospitals, this issue becomes more of training and policy since an entity’s liability often is derivative of its employees. Holding trainings on walking out on patients would seemingly accomplish little, as the professionals who would take the training seriously would already be unlikely to walk out on patients. Nevertheless, entities may protect themselves by implementing policies against leaving patients unattended mid-operation. Such a policy permits hospitals to shift the focus back onto physicians, who should know not to leave a patient in the hands of a physician assistant, regardless of his or her capabilities.
In this case, there were other glaring issues that were not addressed. One issue is whether the surgeon was credentialed to perform the reimplantation. If properly trained, the knowledge of when it is appropriate to perform the procedure should have prevented the physician from making that choice. Additionally, open-heart surgery is a major procedure that requires more than one surgeon in the room. A physician assistant is not a licensed physician or surgeon and not credentialed to perform the surgery. The circulating nurse, anesthesiologist, scrub technicians, and others in the room should have immediately called for a backup surgeon or, at the very least, attempted to bring the surgeon back. If the hospital has been granted privileges from the state to perform cardiovascular surgeries, there would be additional resources within reach to step in if the primary surgeon becomes incapacitated during the procedure. Surgery should have stopped and hemostasis maintained until the appropriate level of help arrived on scene.
Another issue pertains to a patient’s receipt of information and provision of informed consent. Absent a medical emergency, a patient must consent to a medical procedure and must be informed of the treatment, its likelihood of success, and associated risks. In this case, the physician performed an unexpected and unplanned right coronary artery reimplantation. The reimplantation is used to treat anomalous aortic origin of a coronary artery, a rare cardiac condition that the patient in this case did not have. Various techniques exist to accomplish a coronary artery reimplantation, and all share a common thread in that they are technically challenging; performing any such complex technique without reason or patient consent may constitute negligence. Hospitals should make it clear to professionals that performing unnecessary procedures on patients is to be avoided, especially when the patient is anesthetized and has not provided informed consent.
This also raises the issue of reporting and documentation, which were egregiously deficient in this case. Intentionally leaving critical information, such as the professional performing an operation or developments during the operation, out of the patient’s medical record is problematic and may constitute an independent breach of a physician’s duty if such actions are below the standard of care. As applied to this case, apparently none of the parties involved in the surgery disclosed the critical information, which was only subsequently revealed by an anonymous phone call. Such actions should not be necessary as medical providers should be encouraged to be forthcoming with information. Hospitals and other entities must implement and actively encourage policies whereby employees and staff feel comfortable raising concerns about a patient’s care and that their concerns will be evaluated absent judgment or fear of reprisal.
Decided on Feb. 28, 2018, in the California Superior Court, Fresno County; Case Number 13CECG03906.
Financial Disclosure: Author Greg Freeman, Editor Jill Drachenberg, Editor Jesse Saffron, Editorial Group Manager Terrey L. Hatcher, and Nurse Planner Maureen Archambault report no consultant, stockholder, speaker’s bureau, research, or other financial relationships with companies having ties to this field of study. Consulting Editor Arnold Mackles, MD, MBA, LHRM, discloses that he is an author and advisory board member for The Sullivan Group and that he is owner, stockholder, presenter, author, and consultant for Innovative Healthcare Compliance Group.