Botched removal of pacing wires leads to verdict of $5.5 million
By Damian D. Capozzola, Esq., Law Offices of Damian D. Capozzola, Los Angeles
Jamie Terrence, RN, Director of Risk Management Services, California Hospital Medical Center, Los Angeles
Angelina Gratiano, Esq., Los Angeles
News: A woman surviving an extensive cardiac bypass surgery died after the removal of pacing wires in her chest caused fatal internal bleeding, directly leading to her death. After the successful placement of the pacemaker in the woman’s chest, the pacing wires remained on her heart, as per the traditional protocol.Over several days, it was determined that the wires were no longer needed and were removed by a nurse. However, because the wires were improperly placed in the woman’s chest, removal of the wires severed a vein graft, which caused uncontrollable internal bleeding. Despite attempts by the hospital staff and the on-call thoracic surgeon, the woman ultimately died as a result of the bleeding caused by improperly placed pacing wires. To make matters worse, a nurse was dispatched to inform the family of the tragedy instead of the surgeon doing so himself, which enraged the family. After the woman’s death, the daughter brought suit, on her own behalf and on behalf of the estate of her late mother, against the surgeon responsible for placing the wires. Ultimately, the jury unanimously found that the cause of death was directly related to the misplaced wires and awarded the decedent’s daughter $5.5 million dollars.
Background: In February 2011, the adult woman underwent cardiac bypass surgery under the care of the surgeon at a hospital specializing in vein restoration. Heart bypass surgery has been performed on patients for about 40 years. Recent statistics indicate that about 500,000 bypass surgeries are conducted each year, which makes it one of the most common surgical procedures in the United States. While this surgery is common, extensive training of cardiovascular surgeons is essential not only for patient care during the surgery, but also patient care during the recovery stage.
For cardiac bypass surgery, the main goal is to create a literal bypass by grafting a section of a vein above and below an obstructed area of a patient’s coronary artery. It is standard to place temporary pacing wires in the patient’s chest, as well as tubes to drain excess fluids, to monitor and regulate a patient’s heart rate after the surgery while the patient is recovering. The placement of these wires is vital because removal or placement of the wires might interfere with any vein grafts in the patient’s chest. Generally, pacing wires are left in the patient’s chest and trimmed from outside, or the wires are completely removed.After recovering from the surgery for approximately five days, the patient’s nurse removed the pacing wires.
It should be noted that although removing pacing wires is a routine part of bypass surgeries, in this case, once the nurse was given approval to remove the wires, the woman began to bleed internally. Within a few minutes, the bleeding was uncontrollable, the woman became unconscious, and she ultimately died as a result of the extensive blood loss. Eventually the hospital staff realized that the vein graft had been severed as a result of removing the pacing wires; however, the hospital records did not indicate important information, such as who placed the wires. This kind of objectively pertinent medical information is always vital to be included in a patient’s medical record, and indeed is required for submission to CMS and insurers.
Eventually the woman’s daughter brought two causes of action individually and on behalf of her late mother’s estate against the surgeon responsible for overseeing the placement of the wires: (1) negligent medical care and (2) wrongful death. Additionally, the daughter brought the same causes of action against the medical facility, claiming the doctor was the medical facility’s agent. The daughter’s lawsuit claimed that the doctor improperly placed the wires on her mother’s heart.During the trial, the jury was allowed to note that the medical records failed to indicate not only who placed the pacing wires during the surgery, but also how many wires were placed in the patient’s chest. Moreover, none of the surgical staff that testified at trial could recall this information.
The surgeon’s defense at trial was that the plaintiff failed to meet the required evidentiary burden in the case. The surgeon asserted that since the plaintiff failed to provide evidence showing who placed the wires, the plaintiff failed to prove that the wires were, in fact, placed improperly. However, the plaintiff’s attorney questioned the surgeon on the stand, asking repeatedly if information about who placed the wires in the patient was the kind of objective and relevant information that should be included in a patient’s medical record. Eventually, the surgeon admitted that this is the kind of information that is objective and relevant to a patient’s medical care.It remains to be seen whether this response swayed the jury, but the plaintiff’s primary evidentiary focus was the fact that the surgeon filled out the death certificate indicating that the cause of death was a result of an injury caused by pulling the pacing wires from her chest.
Ultimately, members of the jury unanimously determined that the doctor and medical facility were responsible for the patient’s death and awarded a $5.5 million dollar verdict, for which the doctor and the medical facility were jointly and severally liable.
What this means to you: Cardiac bypass surgeries are all too common in the United States. However, as with any kind of medical care, it is essential to diligently monitor and record patient care. Every effort should be taken to ensure that a patient’s medical record includes all objective and relevant information. In this case, the failure of the surgeon and medical staff to properly memorialize common pertinent facts of a surgery presented an evidentiary problem at trial. By not including this information, the surgeon and the medical facility were not as prepared in developing their defense.
Unfortunately, staff members at hospitals and other medical facilities often leave critical information off the record. This issue can be especially problematic during surgical procedures. The primary surgeon seldom performs all aspects of a surgery. Most states and hospitals have regulations requiring surgeons to operate with an assistant surgeon in the room. Also, there are students, resident physicians, and often surgical equipment vendors participating in the procedure. Indeed, a common issue that defense attorneys see in the high-risk arena of labor and delivery is for the medical record to lack the name of the individual who actually delivered the infant. The Joint Commission and the Centers for Medicare and Medicaid Services have made great strides in ensuring that regulations require surgical teams to account for all instruments and sponges used during a surgical procedure. Your hospital or other medical facility needs to take this one step further to ensure that there is a complete accounting in the medical record of every individual in the surgical suite, even if they were only observing. Also note that the patient has the right to know who these people will be and approve of their participation before the surgery takes place.
Additionally, in situations in which a tragic mistake does happen, it is essential for the physicians to ensure that the lines of communication are open between themselves and the patients’ families. Bedside manner matters. When something goes wrong, it might in some instances mean the difference between whether a lawsuit is filed or whether a doctor is named as an individual defendant. Unfortunately, in the case of this patient, the surgeon failed to personally inform the patient’s family about the death and failed to speak with the family about the circumstances surrounding the complications. A nurse was designated to relay the tragic news to the family without explanation, which confused and angered the family, especially since prior to the surgery the surgeon had been generally available to the family.
That said, it is very unusual for hospital policy, which governs most aspects of nursing procedures, or medical staff rules and regulations, which govern the activities of the medical staff of the hospital, to permit notification of death or other serious adverse event, by anyone other than the physician caring for the patient. A nurse should never find himself or herself taking on this role and should refuse to do it.The reasons are many, but the primary issue is the ability of the nurse to answer the complex medical questions that might follow. The first thought that comes to the bewildered family members in these cases is that the physician is negating responsibility and is somehow implicated in the event and therefore unwilling or unable to face them. Trust is lost. While being open to confronting a patient’s family, specifically being the bearer of bad news, can be extremely difficult, it is the sole responsibility of the physician. Even if the doctor’s actions are not the result of the patient’s complications, speaking with the family can go a long way to ensuring that the family feels like they are "in the loop" and adequately understand what happened to their loved one. By avoiding the use of complex medical terms, which can leave patients and their families feeling confused or completely in the dark and explaining things at the level the patient and family understands, the physician builds trust and eliminates the uncertainty that often leads to them seeking plaintiff attorney counsel.
Hospitals also should take extra steps to remind patients that the physicians that practice in their hospitals are not hospital employees. Signs should be posted that state this fact. Patients should initial their understanding of this fact on consent forms. Physician badges should not bear the hospital name or logo. In some cases this approach might prevent the hospital from becoming a party to litigation if the negligence is clearly placed on the physician.
Lastly, in situations where the doctors have the option to settle with the patients or their families, the doctors might want to strongly consider the option of a confidential settlement agreement. Healthcare professionals might opt for this settlement when it makes sense to end litigation of the case quickly. Deciding to go to trial can create serious public relations problems for the doctor and the hospital and damage well-established and hard-earned reputations along the way.
Another important concern for healthcare professionals should be that an appearance of the likelihood for successful litigation might create further litigation. When a particular case is publicized in the press, the public (which includes potential plaintiffs) might perceive that other cases will be successful as well.With this in mind, a settlement agreement might help to avoid public disapproval of the doctor and/or hospital, as well as the potential inundation of lawsuits.
Obviously, settlement agreements might not be a good option when the doctor or the hospital has a good defense for claims of medical negligence or malpractice. However, if there is a strong likelihood that the plaintiff will be able to present evidence at trial that is likely to prove their case, a confidential settlement agreement might be the best option for the doctor and hospital.
Reference
- No. CAL13-15952, Prince George County Circuit Court, Prince George County, MD.Sept. 6, 2013. F
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