Legal Review & Commentary
$178 million verdict awarded to victim of botched gastric bypass procedure
By Jonathan D. Rubin, Esq.
Partner
Kaufman Borgeest & Ryan
New York, NY
Sandra L. Brown, Esq.
Associate
Kaufman Borgeest & Ryan
New York, NY
Bruce Cohn, JD, MPH
Vice President
Risk Management & Legal Affairs
Winthrop-University Hospital
Mineola, NY
News: In one of the largest verdicts handed down in recent Florida history, a hospital was ordered to pay $178 million in damages for permanently disabling a 38-year-old patient during gastric bypass surgery. The plaintiff was a deputy at the county sheriff’s department, and he was described as a very active man. However, due to complications from the surgery, he wound up in a comatose state and suffered permanent brain and eye injuries that will require lifelong care. Plaintiff’s attorney argued that the hospital was also guilty of fraud, for falsely stating that the operating surgeon was certified by the American Society for Metabolic & Bariatric Surgery’s Center of Excellence. The initial compensatory award gave plaintiff and his family $168 million, followed by another $10 million in punitive damages.
Background: The patient, standing at 6 feet 1 inch and weighing 375 pounds, entered the hospital in March 2007 for bariatric surgery to help him shed some extra pounds. The surgery was recommended to him as being less risky than continuing to live in his overweight physical state. A laparoscopic gastric bypass procedure is designed to help patients lose weight by making them eat less and absorb less of what they consume. Doctors open a patient’s abdominal cavity to reduce the size of the stomach. Yet in this patient’s case, the surgery led to an anastomotic leak, with fluids seeping out of his gastrointestinal tract and into his abdomen.
Following surgery, the patient had difficulty breathing, which is one of the classic symptoms indicative of a leak. However, doctors left the patient in critical care for eight days before the problem was diagnosed and treated. By that time, the leak led to further complications, including sepsis, a respiratory arrest followed by a cardiac arrest, and a two-week coma. When doctors finally performed the second operation, the patient’s blood pressure had dropped to the point of a “lowflow stroke,” obstructing blood flow to the brain and ultimately causing permanent brain damage. The patient then was held in the hospital’s Critical Care Unit as a total care patient for several additional weeks. During that time, he suffered another batch of injuries to his corneas, contractures (frozen joints), and bed sores. By the time he emerged from the hospital, the patient was permanently mentally and physically disabled, and he was in need of fulltime care. He is no longer able to speak intelligently or walk, feed, or bathe himself.
Plaintiff filed suit against hospital and physician. At trial, plaintiff’s attorney explained that a leak such as the one suffered by this patient is a very serious yet well-known complication of a gastric bypass. Until a leak is definitively ruled out, he explained, doctors are supposed to go back in and resew the potentially leaking bowels. The hospital also testified that most bariatric doctors would have taken this patient back into surgery as soon as he showed any signs of leakage.
Plaintiff’s claims also contained allegations of fraud. The plaintiff presented evidence that the hospital falsely advertised the operating surgeon to be a certified Bariatric Center of Excellence physician. To meet the standards of the American Society for Metabolic & Bariatric Surgery’s Center of Excellence program, surgeons must perform 50 bariatric surgeries each year and at least 125 surgeries over the course of their careers. Yet the surgeon in question performed, at most, 21 bariatric surgeries. This lack of experience explains why the surgeon failed to detect and prevent the complications ultimately suffered by the patient, argued the plaintiff’s lawyer. Most doctors experienced in performing bariatric surgeries would have made the decision to take the patient back in to the operating room for further exploration.
On Jan. 18, 2011, plaintiff filed a motion for punitive damages and argued that the patient’s injuries stemmed from the hospital’s failure to provide the most basic medical care. The motion itself reveals that the hospital nurses neglected to perform any managerial review of the patient’s medical records, which would have prevented and/or corrected many of the complications following his surgery. Furthermore, the evidence demonstrates that in 2008 and early 2010, the hospital was cited by the Florida Agency for Health Care Administration for deficiencies in its care of patients and particularly for failures relating to nursing and wound care. In a detailed response, the hospital officials promised to increase staffing and implement policies that better track patients at risk of developing bedsores.
The motion also contained testimony from the two-day deposition of the hospital’s wound care nurse. There, the nurse revealed that she resigned from her position at the hospital in protest over its treatment of this patient and other similarly situated patients. The witness further explained that since 2002, she complained about deficiencies in the wound care treatment to the hospital’s management and administration at least every few weeks, but she said the hospital ultimately refused to address any of her concerns. Portions of the deposition video and transcript were released to the media during trial.
After hearing from both sides, the all-female jury deliberated for more than 30 hours before returning with a $168 million verdict against the hospital. However, it took them under an hour to award plaintiff and his family an additional $10 million in punitive damages. Among its findings, the jury found that the hospital committed fraud in knowingly allowing the surgeon to perform paid surgeries in which he falsified his certification as a Bariatric Center of Excellence surgeon. The surgeon settled with the plaintiff for an undisclosed amount.
What this means to you: The risk manager’s nightmare: A 38-year-old man, working and active with a family, goes into the hospital for an elective procedure and leaves the hospital physically devastated. The $178M verdict is likely to be reduced by a judge or on appeal, but there will be substantial amounts of money wasted and a significant amount of negative publicity.
What is most evident is the all-too-common failure to respond to patient complaints and a failure to rescue. The patient underwent a gastric bypass and suffered a known complication: a leak at the area of an anastomosis. After surgery, the patient had difficulty breathing, which should have alerted the staff to investigate further. The case report notes that the patient was left in the unit for eight days before the diagnosis was made.
It is tempting to simply blame the surgeon, but the staff caring for the patient was interacting with the patient daily. The patient’s condition and lack of improvement were not adequately escalated to someone who could have intervened earlier. The message should be that everyone has an obligation to push the button to get help. This patient’s condition should have been reported to the operating surgeon and, if no response, to the department chairperson, chief medical officer, chief nursing officer, or anyone who could have forced a re-evaluation of the patient and more timely intervention.
This departure then was complicated by further failures to take care of the patient in an appropriate manner. The patient developed skin ulcers and corneal injuries that, based on the record, might be related to inadequate skin care and failure to lubricate the eyes of a ventilated unconscious patient. The record reports the testimony of the hospital’s skin care nurse, who reportedly resigned over this case and other cases in which she thought patients were not receiving adequate care. The hospital’s failure to rescue the patient initially was compounded by the apparent failure to heed the concerns of the staff.
The institution also apparently was cited by the Florida Agency for Health Care Administration for deficiencies in care. Florida allows the existence of a statement of deficiencies to be public record, which is very damaging at trial. Finally, the credentials of the physician who performed the operation were not adequately checked, and he did not meet the standards of the national certification, in spite of the fact that the hospital held itself out as a center of excellence.
In summary, the patient was not monitored properly, the surgeon was not as expected, and the hospital leaders declined to listen to their own staff when concerns were raised. The lessons in this case are that all patients must be evaluated constantly for changes in condition, complaints should be escalated until someone responds, and hospital administrators must listen to their staff.
Reference
2009 WL 7229132 (Fla.Cir.Ct.).
News: In one of the largest verdicts handed down in recent Florida history, a hospital was ordered to pay $178 million in damages for permanently disabling a 38-year-old patient during gastric bypass surgery.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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