LRC: $12 million award for surgical errors on infant raises difficult questions under med mal cap

$12 million award for surgical errors on infant raises difficult questions under med mal cap

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, JD,

Los Angeles

News: An infant diagnosed with a rare form of malignant liver cancer underwent an emergency liver transplant after suffering catastrophic bleeding when the inferior vena cava above his liver was inadvertently severed by surgeons attempting to remove cancerous tissue. While the hospital and doctor overseeing the surgery admitted liability in transecting the vessels connected to the young patient’s liver, both defendants contended that the their maximum legal obligation had been satisfied based on an advance payment made to the child and the child’s mother, who donated a portion of her liver to her young son, and invoked the protection under the Oregon Tort Claims Act for aggregate limitations on damages. After a jury trial on the sole issue of damages, $12 million was awarded to the plaintiffs against the hospital and the doctor despite the $3 million statutory liability cap for the hospital.

Background: Before his first birthday, the patient (a baby boy) had undergone three cycles of chemotherapy to treat Stage III hepatoblastoma, a type of liver cancer that occurs in the general population at a rate of 1 in one million. By all accounts, the radiation therapy was successful enough to render the tumor fit for surgical resection by the doctors at the hospital.

After reviewing the success of the chemotherapy, the hospital’s oncologists determined that the young child could be successfully treated once portions of the affected liver were removed, as the cancerous cells had not spread to neighboring organs.

An extended right hepatectomy was scheduled to be conducted by the pediatric surgeon and his fellow to remove the cancerous portion of the boy’s liver. A pediatric liver specialist initially was scheduled to participate as well. On the day of the surgery, however, the pediatric liver specialist was not available to oversee the procedure.

During the operation, the blood vessels surrounding the patient’s liver were severed in error, which caused permanent injury to the liver, spleen, and lower bowel due to lack of blood flow. After discovering the surgical error, the hospital urgently conducted subsequent surgeries to lessen the internal bleeding and to prevent additional damage to surrounding organs. While these surgeries were a temporary solution, ultimately the damage to his liver was irreversible and required an immediate liver transplant.

The plaintiffs brought suit against the pediatric surgeon, the pediatric fellow, and the hospital, asserting negligence. The hospital contended that the surgeon and his fellow were acting as agents of the hospital, and thus the hospital vicariously was liable for the medical negligence. This enabled the hospital to indemnify the doctors and also to assert the affirmative defense based on the medical cap protection provided by the Oregon Tort Claims Act. Under the Oregon Tort Claims Act, the hospital would be liable only for damages up to the statutory cap of $3 million. This amount set by the Oregon legislature was meant to provide a meaningful benefit to a plaintiff, which is a point of contention for many plaintiffs. Eventually, the plaintiffs agreed to drop their case against the pediatric fellow and claim only one incident of surgical negligence against the pediatric surgeon and the hospital in exchange for the hospital’s admission of liability.

To elaborate, the hospital at issue is considered an agent of the state of Oregon and is able to invoke the protection of sovereign immunity. Sovereign immunity is a legal concept developed in the United Kingdom during the 1600s, and it prohibited a citizen from bringing a suit against the king. Eventually this doctrine was integrated into the American legal system and, most importantly, applies to the states through the 11th Amendment.

In this case, the state of Oregon is considered immune from civil or criminal suit and thus cannot be held liable. Additionally, this particular hospital is considered an agent of the state and is thus also immune from suit. This essentially means that the hospital cannot be held liable for damages based on medical malpractice, but the hospital’s physicians may be held individually liable. Because of the unique status of this hospital, the hospital is required to indemnify the physicians against any malpractice claims, which in the end results in the hospital being held financially liable for legal claims.

At the close of trial, the jury rendered a verdict awarding the plaintiffs $12 million in damages for the admitted medical negligence on behalf of the hospital and pediatric surgeon. However, whether this judgment actually will be awarded to the plaintiffs remains undecided.

Currently, the statutory cap in Oregon limits liability to a state agency at $3 million dollars. Given the extent of the child’s medical expenses as a result of the surgical error, the parents will not be able to cover the current medical charges as they are in excess of the $3 million cap. This gap essentially means that the $3 million award would arguably not provide a meaningful remedy to the plaintiffs, especially in light of the future medical expenses that the family will incur to adequately treat the child throughout his life. Thus, this cases raises a difficult question: To what extent should a state be required to pay for medical expenses even when a catastrophic medical error is admitted?

What this means to you: In basic terms, this case boils down to a surgical error that potentially could have been prevented by closely monitoring the patient and ensuring that the necessary medical specialists were on hand to supervise the pediatric surgery. Here, having the pediatric liver specialist present during the tumor removal might have helped prevent the catastrophic blood loss suffered by the patient as a result of the surgical error. Of special concern would be how the operative note is documented. The pediatric surgeon was in the OR with his "fellow." A fellow is a physician who has completed a residency program and seeks additional training in a subspecialty. In this case, perhaps the fellow had completed a surgical residency program and now wanted to specialize in pediatrics. Fellows are in training. They are students, for all intents and purposes.

The operative report should specifically state which surgeon was performing which procedure. They often do not. Was it the pediatric surgeon or his fellow that inadvertently severed the critical vessels? Liability for the surgeon and the hospital might increase if the surgery was performed by the fellow. Direct supervision of the fellow by the pediatric surgeon would have to be proven, and it is helpful if this information is documented in the record.

Moreover, note that in many instances, hospital physicians are not employees of the hospital but are members of the medical staff and have independent or group contracts that require that they be credentialed by the hospital board of governors. In that case, they must maintain their own hospital professional liability coverage. That said, in some cases plaintiffs might invoke the doctrine of "ostensible agency." When physicians are independent contractors, they might appear to the public, patients, and visitors to be employees of the hospital. In these instances, the hospital might be considered responsible for negligent acts by its agents (physicians). Hospitals should consider taking steps to inform their patients when their physicians are not hospital employees. In some organizations, patients are asked to sign statements to that effect. Lab coats and ID badges should not have the hospital logo on them. Physicians should not be issued prescription pads or stationary that connects them to the hospital.

Another point to consider is that directors of surgical services must monitor supervision in the OR. Are the surgeons credentialed for the procedures they are performing? Are students, residents, fellows, and vendors present during surgery? Has the patient been informed of this? Does the consent form match the procedure? Is the informed consent of the patient documented in the medical record? Does it include the required elements? All of these factors play an important role in protecting the patient, the practitioner, and the hospital from physical and financial harm.

At the very least, this case is a good example of how important it is to frequently and adequately monitor patients in all medical care settings. All necessary due diligence must be observed by every medical professional who comes into contact with a patient. Doing this due diligence gives medical professionals the best opportunity for treating foreseen and unforeseen medical complications as promptly as possible to minimize damages to the patient.

Additionally, this case highlights the controversial and intensely debated issue of statutory medical malpractice caps. While the function of these caps is to limit excessive judgments against doctors and hospitals and thus keep insurance rates reasonable, they might unfortunately leave plaintiffs unable to pay for resulting medical bills despite receiving a judgment in their favor. Medical malpractice caps vary from state to state. Risk managers and providers should work with their legal counsel and executives to understand whether and how medical malpractice caps apply in the state where they practice, as also illustrated by and discussed in more detail in the next case study.

Reference:

1. Case No. 1108-11209 (Circuit Court of Oregon, Multnomah County). Sept. 19, 2013. F