Legal Review & Commentary-Chain of events leads to brain damage: $4.95 million
By Mark K. Delegal, Esq., and Jan Gorrie, Esq.
Pennington, Moore, Wilkinson, Bell and Dunbar, PA
Tallahassee, FL
News: A chain of events left a man catastrophically brain damaged. After settling with the physician for an undisclosed amount and settling the claim for loss of consortium, a jury returned a verdict of $4.95 million. With statutory caps on damages, the recovery actually approaches $2 million.
Background: A 37-year-old plaintiff was being treated at a Colorado hospital for reflex sympathetic dystrophy (RSD). The man had developed RSD as a result of the amputation of a finger arising from a work-related accident five years earlier. The normal, routine treatment of his RSD entailed an injection of guanethidine, which dulls the nerve endings. Because of the severity of his phantom pain, the guanethidine was given to him several times a week.
Typically, he was sedated during the procedure. However, in this instance, at his bedside was the chemical phenol (carbolic acid) in a vial that was identical to his intended medication. Phenol, an acid that kills nerve tissue, is used rarely as a pain management tool. It had been used by another anesthesiologist, who allegedly disposed of the phenol vial after using it on another patient. Contrary to the hospital's unit dose policy, the vial apparently had not been disposed of by either the physician who had used the material or the nursing staff.
The plaintiff's anesthesiologist took the vial containing phenol from the nerve block tray and, although it was clearly marked as phenol, he injected into the plaintiff. The vial did not have a warning label. Because the patient immediately arched his back in what the anesthesiologist thought was pain, he gave the patient a second injection from the same vial. Several hours later, the patient still appeared to be in pain.
The anesthesiologist believed the plaintiff had suffered from an allergic reaction to the guanethidine and said so out loud. Upon hearing the perceived diagnosis, the head nurse shared that the patient had not in fact been given the guanethidine. It seems that she had known this for some time but had not shared the information. The anesthesiologist checked the sharps box where he had disposed of the vial he had used and discovered the vial marked phenol.
As a result of the injection of phenol, the plaintiff had to undergo emergency surgery. In order to prevent the further development of compartment syndrome, which could have resulted in the loss of his arm, the patient had a fasciotomy. The fasciotomy involved making an incision from his fingertip to elbow.
At the time of the emergency surgery, the patient and his wife were told of the initial mishap. Two days later, the anesthesiologist who had inadvertently administered the phenol determined that, in order to decrease the pain during the standard bandage change from the fasciotomy incision, the patient should be consciously sedated. Against hospital policy during the conscious sedation, the patient was not placed on standard monitoring equipment, which included a pulse oximeter, automatic blood pressure cuff, and an EKG machine. Therefore, when at some point after the procedure his heart and breathing stopped, no one was aware of the situation.
Allegedly, his breathing had stopped for at least five minutes before his condition was discovered at around 8 a.m. The noted time is significant because, based on the hospital's medical record, the staff nurse responsible for regularly checking the patient's vital signs had seemingly not done so as routinely required. When she went back to amend the record, she inadvertently posted that at 8 a.m. the patient was alert and his vital signs were within normal parameters.
The hospital's medical personnel were able to resuscitate him, but the patient remained in a coma for four days. The patient suffered an anoxic encephalopathy and will remain catastrophically brain damaged for the rest of his life. He does not recognize his wife or his child who was born several months after the incidents. He lives apart from his family in a supported-living facility where he receives 24-hour-a-day supervision and care.
The anesthesiologist admitted to inadvertently injecting the plaintiff with phenol. He also admitted to declining the standard monitoring equipment when performing the conscious sedation during the bandage change and electing instead to monitor the patient, which he admittedly failed to do. Prior to trial, the plaintiff settled with the treating anesthesiologist pursuant to a confidential settlement agreement.
Plaintiff alleges negligence
Statutorily in Colorado, hospitals are not liable for the actions of physicians; however, the plaintiff maintained several claims against the hospital for the actions of their personnel. The plaintiff alleged that the hospital was negligent in not removing the phenol contrary to the hospital's unit dose policy, which was in effect at the time of the incident. The plaintiff also alleged that the hospital was negligent in not placing a warning label on the phenol.
In addition, the plaintiff claimed that the hospital was negligent in failing to monitor him during the conscious sedation in keeping with hospital's policy, despite the fact that the doctor did not want it done. The plaintiff's wife settled her claim of loss of consortium against the hospital prior to trial for a payment of $100,000 plus waiver of pursuit of outstanding medical bills that amounted to approximately $200,000. The claims against the hospital proceeded to trial, where the jury awarded the plaintiff $4.95 million, including the loss of consortium claim, which was statutorily capped at $250,000 despite the earlier settlement.
With other statutory limitations in place, the actual award was approximately $2 million. In addition to the suit against the hospital, the plaintiff brought a negligence suit against the anesthesiologist who seemed to have not properly disposed of the phenol as required the hospital's protocols. This action resulted in a summary judgment in favor of the physician; however, the plaintiff has successfully appealed that decision.
What this means to you: This case includes several obvious pitfalls, most of which involve failure of the physicians and/or hospital staff to follow established hospital policies and procedures. The issues of assessing staff competency and correcting related shortcomings as well as the facility's processes for taking proper interventions when dealing with known performance problems also are raised.
The failure of the practitioners involved in the case to properly clean their work area resulted in the Phenol being available in the first place. "If it had been disposed of or at least removed from the nerve block tray according to policy, the error with this patient would not have occurred. Failure of the hospital pharmacy to properly label the phenol with an appropriate, highly visible warning label also contributed to the initial incident," says Mary Susan Keaton, RN, BSN, director of performance improvement and risk management at Summersville (WV) Memorial Hospital.
"The anesthesiologist's failure to read the label on the phenol container, which violates a cardinal rule of administering any drug, is the basis for the entire chain of events which followed, including the catastrophic outcome. Apparently the nursing staff somehow became aware of the error before the anesthesiologist did, but they contributed to the devastating effects of the mistake by not reporting it to the doctor and their managers as soon as possible. This delay in reporting may well have contributed to the severity of the tissue injury which the patient incurred," adds Keaton.
"The additional failure of the anesthesiologist to properly monitor the patient during the dressing change constitutes a blatant disregard for widely accepted standards of care, as well as an overt violation of facility policy. The nursing staff who were present during this procedure and failed to safeguard the patient to the best of their ability when it was obvious the physician was not doing so were also at fault. They then compounded the problem by changing the medical record after the fact," says Keaton.
"The less obvious problems I see with this case involve the facility's practices relating to a variety of issues, including orientation and training of staff and physicians, reporting and resolution of practice concerns, communication with patients and families about medical errors, and documentation of care," she notes.
All hospital employees and physicians should receive a thorough orientation when they begin work at a facility, including procedures for reporting quality concerns, errors, and near-misses as well as documentation do's and don'ts. The hospital's risk management and performance improvement programs should foster a facilitywide attitude of teamwork and cooperation with a focus on solving problems by way of process review and refinement as opposed to placing blame on individuals. Doing so will encourage proper reporting and channeling of information, allowing potential problems to be dealt with before actual harm or injury occurs.
"In this particular case, it seems that the nursing staff was reluctant to, first, report the use of the wrong medication and, second, to intercede proactively on their patient's behalf during the conscious sedation procedure," Keaton says. "This reluctance resulted in actual harm to the patient on both occasions and must be addressed immediately by hospital management. Why did the nurses knowingly fail to take appropriate action? Perhaps they feared retribution by the anesthesiologist or maybe management historically had sent an unspoken message to not cause trouble, or, worst of all, maybe the staff was apathetic. It is possible and very conceivable, based on his behavior in this one case, that the anesthesiologist routinely ignored policies and procedures and that previous attempts by staff to report such concerns had fallen on deaf ears or otherwise proved futile.
"Employees become very disheartened when they try to address problems through established procedures, such as reporting through their chain of command, but then the issues are never effectively addressed. After a while, they will stop trying. It is up to management and administration to encourage communication and for that communication to be two-way, that is to get back to the employee and let them know how their concerns are going to be channeled," she says.
Managers, administrators, medical staff officers, and committees need to take reports of improper conduct and/or failure to follow established protocols very seriously, validate them as objectively as possible, and then address them as expeditiously as possible. Medical staff peer review and privileging/credentialing processes must be well-defined and invoked in a timely manner when quality-of-care issues arise.
In this case, failure of this system could account for the same anesthesiologist being allowed to continue working unsupervised after making such a serious medication error. If the medication error had been reported immediately, appropriate investigation performed as quickly as possible, and a plan or correction imposed on the anesthesiologist (which may have included additional education, monitoring by a peer, imposed probation, or even removal from duty), the opportunity for the second series of mistakes related to the lack of monitoring might not have occurred. This system is particularly useful in instances such as this, where the patient has been informed of the error and still chose to be cared for by the physician who had admitted the error.
Proper documentation a must
One last concern is that the staff nurse responsible for regularly checking the patient's vital signs during the conscious sedation and dressing change went back to amend the record and, in doing so, entered erroneous information. "All staff should know how to document properly and how to make proper corrections, if necessary, to medical records. The descriptions given in this scenario gives the impression that the nurse was not writing an addendum of assessments which were actually performed but not initially charted. Rather, it sounds like she was falsifying records in an attempt to protect herself," notes Keaton.
The facility must have clearly written procedures for how to document and well-defined definitions of acceptable behavior. Most facilities consider falsification of records to be grounds for immediate dismissal, and they may be required to report such events to state licensure boards. This tragic outcome could have been prevented or at least minimized had policies, procedures, and protocols been followed.
Reference
Robert Rodriguez, by and through his next friend and legal guardian, Lori Rodriguez v. HealthONE d/b/a Aurora Presbyterian Hospital, Denver County (C) District Court, Case No. 96-CV-1446.
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