Legal Community and Review-Suit reinstated based on death of ECT patient
News: A New York appeals court reinstated a suit brought against a hospital and three physicians based on the eventual death of a patient after electroconvulsive therapy (ECT). The patient, who had chronic obstructive pulmonary disease (COPD), suffered sustained status epilepticus during the procedure and lapsed into a coma afterward.
Background: In July 1990, the patient was diagnosed by a physician at this hospital with COPD. She was prescribed theophylline. She returned on Aug. 27, 1990, in a state of severe depression and was voluntarily admitted to the hospital's psychiatric department. The patient had achieved some relief with ECT in the 1960s. Her psychiatrist consulted with several specialists and conducted various lab tests to determine whether she was a viable candidate for ECT. The psychiatrist consulted with the patient's internist concerning her pulmonary condition because the pulmonologist who examined her in July was unavailable.
The psychiatrist decided to perform the procedure. Blood levels of theophylline taken on Aug. 29 and 30 were in the therapeutic range. In preparation for the ECT, the patient's internist reduced her dosage from 400 mg to 300 mg to reduce the risk of status epilepticus. The ECT was performed on Sept. 7. Shortly after the intended seizure was induced, the patient experienced status epilepticus that lasted for several hours. The psychiatrist left the treatment room at some point to obtain assistance. The patient lapsed into a coma for approximately 10 days and sustained permanent injuries, including bilateral deafness, memory loss, and seizure disorder. She died six years later.
The patient's husband sued the hospital, psych iatrist, internist, and anesthesiologist, alleging, among other things, failure to obtain a pulmonary consult before the ECT, failure to consult other physicians about discontinuing or lowering the theophylline dosage, failure to take theophylline blood levels shortly before the ECT, and failure to properly monitor the ECT and control the status epilepticus. The suit claimed the hospital was vicariously liable for the physicians' alleged negligence.
At trial in late 1997, the judge dismissed the claims against the hospital, ruling the plaintiff did not prove that any of the doctors were employed by the facility. The jury returned a verdict in favor of the doctors. The appeals court reversed the judgment, reinstating the claims against the hospital and the physicians.
The court reinstated the claims against the physicians because the trial judge had refused to let three of the plaintiff's expert witnesses testify — a pulmonologist, a psychiatrist, and a neurologist. The court order noted that the only expert who was allowed to testify for the plaintiff was an individual with a PhD in clinical psychology and experimental psychopathology. The psychologist was not qualified to give, and did not offer, any medical opinions. The pulmonologist apparently would have testified that the patient's pulmonary condition rendered her unfit for ECT and that she could have been safely taken off theophylline to reduce the risk of prolonged seizures. The psychiatrist apparently was prepared to testify that alternative, less dangerous forms of treatment were available for the patient's depression.
The plaintiff's neurologist would have testified that the ECT was negligently performed and was the cause of the patient's injuries, court records show. The defendants' neurologist testified that the patient's injuries resulted from a congenital vascular malfunction of the brain. The plaintiff's neurologist should have been permitted to respond to that theory, court records show.
The appeals court also ruled that the evidence could lead a jury to decide that the hospital was vicariously liable for the acts of the physicians. The psychiatrist had an office in, and received compensation from, the hospital, and the anesthesiologist was a member of the hospital's medical staff, suggesting that they could be hospital employees, court records show. Even if they were not, the evidence raised a question as to whether the patient could have properly assumed that the treating doctors and staff were acting on the hospital's behalf, according to court records. The patient had entered through the emergency room and sought treatment from the hospital. She did not request a specific doctor, the court's opinion notes.
What it means to you: Sue Wilson, RN, MBA/ MHA, a risk manager at St. Joseph's Hospital in Atlanta, says the evidence of ventricular abnormalities established by the autopsy report likely will be the hospital's primary defense at a retrial. She says it should have been asserted earlier in the litigation.
Next, Wilson points out that the psychiatrist in this case should have obtained a pulmonary consult rather than relying solely upon the intern ist's evaluation of the patient's COPD status. The internist likely would not have been named as a defendant had she advised the psychiatrist to consult with a pulmonologist, Wilson says. "Anes thesia is riskier with COPD patients. After all, ECT is an induction of a seizure. Knowing that theophylline might complicate the ECT process provided an even greater reason to consult with a pulmonologist, and perhaps even a pharmacist."
As for the evidence that the psychiatrist left during the ECT to obtain assistance, it is unclear whether the anesthesiologist and psychiatrist requested help quickly enough once status epilepticus was diagnosed, Wilson says. Moreover, without having taken the theophylline level just prior to ECT, it is impossible to say whether the reduction in the dose resulted in a low enough blood level to be compatible with ECT, she says.
The patient also claims that the hospital provided a physician to her through the ED and is thus vicariously liable for the physicians' actions. It is more difficult to defend against that claim when a physician resembles an employee in terms of office location, compensation, and similar factors, Wilson notes. "Unless the patient specifically requests a particular physician or severs the relationship with the attending physician on call, it is reasonable to assume the patient is choosing to receive care from the hospital, particularly if the appropriate consent-for-treatment forms are completed.
"Did the hospital have a general admission consent form asking patients to acknowledge that the physicians treating her were independent contractors? This form helps to establish independence but does not always successfully relieve the hospital of liability if medical staff are not clearly defined as, and treated as, independent contractors. Even when patients sign such acknowledgments, the lay public, and thus, juries, still tend to see physicians as extensions of, or 'approved' by, hospitals," she says.
Finally, Wilson asks whether the hospital follows its bylaws with regard to medical staff privileges and credentialing. "For example, did the hospital credential the anesthesiologist to perform ECT? If not, vicarious liability is difficult to defend against in these cases."
Reference
Shafran v. St. Vincent's Hospital and Medical Center, 1999 WL 682023 (N.Y.A.D. 1 Dept.).
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