Patient suffers stroke during elective hair transplant, has $2.7 million verdict reduced due to culpable conduct
By Jonathan D. Rubin, Esq.
Partner
Kaufman, Borgeest & Ryan
New York, NY
Steve Auletta, Esq.
Associate
Kaufman Borgeest & Ryan
Valhalla, NY
Bruce Cohn, JD, MPH
Vice President
Risk Management and Legal Affairs
Winthrop-University Hospital
Mineola, NY
News: In February 2010, a 70-year-old male patient underwent an elective hair transplant procedure performed by a general surgeon. The patient claimed that he suffered a stroke during the procedure that caused him to sustain permanent brain damage, severe speech impairment, and other injuries. The patient and his wife sued the surgeon and his practice for negligence, and a jury awarded a total of $2.7 million. However, the award was reduced to $1.2 million due to the jury’s finding that the patient and his wife were 55% responsible for the damages due to their comparative negligence.
Background: In February 2010, a 70-year-old male patient presented to a general surgeon at his hair restoration office to undergo an elective hair transplant procedure. The patient’s wife was present for the procedure. Before the procedure, the patient reportedly told the surgeon that he was a diabetic and had hypertension. However, the plaintiffs claimed that the surgeon failed to perform a sufficient evaluation before the procedure. Additionally, the patient claimed that the surgeon failed to advise him of the risk of death or serious complications given his age and risk factors. The plaintiffs claimed that during the 10-hour procedure, the patient suffered a stroke, which the defendants failed to detect. The patient also reportedly became hypertensive and convulsed. The defendants also allegedly failed to timely administer thrombolytic medication to break up clots, which could have prevented much of the patient’s brain damage. The plaintiffs also contended that the defendants negligently discharged the patient after the procedure, even though he was unable to speak or walk without assistance at that time.
Testimony at trial indicated that the plaintiffs spoke to someone at the defendants’ office after the procedure, who stated that the patient’s continuing symptoms were due to the pain medication that was administered during the procedure and that there was no cause for concern. To support their claims, the plaintiffs called experts in neurology and anesthesiology.
The defendants argued that all of the treatment was provided within the proper standard of care. Additionally, they claimed that the stroke actually occurred several days after the procedure, and that the patient and his wife were negligent for failing to go to seek medical attention sooner and for failing to seek treatment for the patient’s chronic medical conditions. The defendants called experts in hair transplantation surgery, neurology, and anesthesiology.
As a result of the alleged malpractice, the patient allegedly sustained permanent brain damage, severe speech impairment (including Boca’s aphasia and speech apraxia), and right-sided partial hemiplegia. He is allegedly unable to walk without dragging his right leg. Before the surgery, the patient worked as a jeweler in a business he owned with his wife, and he also managed a real estate portfolio they owned. After the procedure, the patient was allegedly unable to return to work or manage the properties he owned with his wife. He also allegedly requires round-the-clock care, is unable to feed himself, and has difficulty with personal hygiene activities.
The jury found for the plaintiffs and awarded a total of $2.7 million in damages. This amount included: $200,000 for past medical expenses; $500,000 for future medical expenses; $120,000 for past lost wages; $400,000 for future lost wages, $900,000 for pain and suffering, and $600,000 for loss of services. The jury assigned 45% liability to the surgeon and his practice, but found contributory negligence on the part of the patient (45%) and his wife (10%).
What this means to you: A 70-year-old man goes in for an elective procedure and comes out seriously impaired from a cerebrovascular accident (CVA). This is the kind of "horror movie" that makes lay jurors become punitive. Six or nine or 12 people with no medical (or legal) experience can sooner forgive a physician and hospital when a patient is really sick and needs surgery that does not go well. Elective surgery that is supposed to be "no big deal" and goes wrong is difficult for them to reconcile.
This older man presented for a hair transplant. According to the testimony of the wife who was present, the patient reported a history of diabetes mellitus and hypertension. This point raises the first question: What kind of evaluation was done prior to clearing the patient? Hair transplant is a surgical procedure. While we don’t have access to the medical records, it does not appear from the trial report that the patient’s primary care physician cleared the patient prior to the surgery. It would be expected that if there was a separate clearance, that testimony would have been used certainly by the defense to mitigate the allegations.
This point is a major consideration in evaluating the liability. The patient’s age and history would have moved him to a higher risk anesthesia class, and it seems more dangerous to operate on this type of patient without a comprehensive evaluation by an internist or cardiologist.
The wife also testified that no discussion was had regarding the risks, benefits, and alternatives to the procedure. We always take this testimony with a bit of skepticism, having seen dozens of plaintiffs testify over the years that the doctor told them essentially "nothing" about the procedure and just "sign here" The proof, such as it is, in these types of situations is the record, and this is another caution.
We remind physicians all the time that the consent is not the piece of paper that the patient signs; the consent is the conversation with the patient. The consent for any invasive procedure should be obtained by the person doing the procedure or at least, someone who is credentialed to perform the procedure. Otherwise, how can questions be appropriately answered? In addition, the details of the conversation must be clearly set out by the practitioner in the record. The entry should not simply say that the risks, benefits, and alternatives have been discussed. Instead, it should say what information was discussed. What specific risks, what benefits, and what questions did the patient and/or family raise?
In the event that something goes wrong, the record must show convincing evidence of the discussion. Did this patient and his wife understand that any surgical procedure, given the patients’ age and history, have the risk of death or serious injury?
The operation is said to have taken an inordinate amount of time, and it appears that the procedure was performed not in a hospital but in some type of office-based surgery or in an ambulatory center affiliated with the hair restoration practitioner. Was this office/center the proper place for this type of patient? Many physicians who are comfortable with office-based procedures or working in an ASC on low risk patients will insist on performing the procedure in a hospital if the patient has comorbidities.
The case also has an apparent large component of failure to adequately monitor the patient, or what the medical-legal bar calls "failure to rescue." Should the surgeon or the person doing the intraoperative monitoring (and who was this person?) have noted the patients’ symptoms and intervened, which might have required terminating the procedure and transferring the patient to a hospital? We have seen a hesitation among proceduralists of stopping a case, wanting to finish, as long as the patient is there and anesthetized. In an emergency procedure, this might make sense, but less so for a hair transplant procedure.
Finally, the patient appeared to be discharged even with complaints of being unable to walk or speak properly. This is a huge mistake. Intraoperative complications occur especially when the patient has a complex medical history. The occurrence of such a complication might be defensible, but discharging a patient who has not reached his or her pre-procedure status without further work-up will likely not be defensible.
The problem apparently was compounded when the wife called the center to say that the husband was continuing to have symptoms. These symptoms were ascribed to effects of pain medication, which again was a dangerous assumption.
Patients who undergo procedures who then call with complaints should be taken seriously. Any significant complaints that are not expected should warrant a suggestion to return immediately or to proceed to the nearest emergency department. It is better to create an extra unnecessary trip back for some reassurance than to risk missing a significant complication that could be treated.
In this case, the patient suffered a stroke, and early treatment was essential to lessen the severity of the injury. If the patient had been treated, made a full recovery with little or no sequela, the value of the legal case could have been significantly diminished even in the face of proven malpractice.
Also of interest in this case is that the jury found a greater percentage of negligence leading to the damage on the part of the patient and his wife than on the surgeon. However, the money damages still are significant, and this decision does not absolve the surgeon of liability.
Reference:
Los Angeles Superior Court, Claim No. BC445812.
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