By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola
Los Angeles
Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services
(2004-2013)
California Hospital Medical Center
Los Angeles
News: An Illinois appellate court recently affirmed a $49 million judgment in a medical malpractice case after a patient suffered devastating medical complications following gallbladder surgery that eventually required the replacement of his colon. The plaintiff underwent gallbladder removal the same day he visited the defendant hospital with back and side pain, but it was his postoperative decline he claimed exhibited the hospital’s negligence.
The appeal of the multimillion-dollar verdict was based on the erroneous admission by the trial court of deposition testimonies of seven physicians. Although the physicians’ testimony would typically be barred under the longstanding legal doctrine barring “hearsay” at trial, the court found their deposition testimony fell into an exception under the hearsay rule and allowed it to be read in front of the jury.
Despite noting the trial court’s admission of the physicians’ testimony was an error, the appellate court found the defendant hospital and physician failed to explain how the jury’s verdict would have been any different had that testimony been excluded. The case is an important reminder that juries may assess significant damages against defendants they believe have been negligent, and that those large verdicts may be upheld even in the face of evidentiary errors.
Background: In February 2015, the plaintiff visited the hospital with complaints of back and side pain. The physician on call diagnosed him with acute gallbladder inflammation and performed laparoscopic gallbladder removal surgery the same day. But within 24 hours, the plaintiff began to manifest symptoms of sepsis. The patient suffered through severe sepsis, septic shock, and multiorgan system failure.
Despite what he argued were clear indications of sepsis, the patient’s deteriorating condition did not receive timely intervention. The patient was given broad-spectrum antibiotics and was admitted to the hospital’s ICU. For three critical weeks, his health continued to decline. A CT scan showed the patient’s bowels were dilated, which he argued was indicative of a bowel obstruction and perforation, but the physician did not recommend surgery. It took a second CT scan, performed three days later, that prompted the physician to perform emergency surgery after showing a perforation in the patient’s abdomen.
The surgery revealed a significant portion of the plaintiff’s small bowel had failed. Over the next several days and weeks, the patient lost most of his small bowel and part of his stomach to surgical removal. Ultimately, the patient underwent a bowel transplant at a different hospital.
In 2016, the patient and his wife filed a lawsuit, pinning the blame on the defendant hospital and several of his treating physicians. His primary contention was that the physicians and hospital allowed his life-threatening infection to fester for a distressing 11 days before taking any life-saving action. The plaintiff and his wife pointed to the hospital’s contemporaneous medical records, which they argued showed the physician and hospital failed to act on the sepsis until weeks later.
During the trial, deposition testimonies of 10 treating physicians were read to the jury, over objection by the defendants. The testimony involved the physicians’ failure to recognize and respond to the plaintiff’s deteriorating condition. The plaintiff argued this testimony was admissible, despite being “hearsay” evidence, because the physicians were agents of the hospital, and it met the exception under the Illinois Rules of Evidence. The trial court agreed and admitted the depositions.
The appellate court determined seven of these depositions were inadmissible because they were not properly admitted under any exception to the bar on hearsay. The justices found that while these physicians were considered “agents” of the hospital at the time the plaintiff was hospitalized, their depositions were not taken until years later. On that point, the defendants were successful. But it was a pyrrhic victory: The appellate court ruled that despite the erroneous admission of seven depositions into evidence, the defendants failed to show how this error affected the outcome of the trial, affirming the jury’s $42 million verdict.
What this means to you: Hearsay is an out-of-court statement used to verify the truth of its content. As a rule, hearsay is not allowed at trial because it lacks an in-court witness who can be cross-examined about the alleged statement. Deposition testimony is classic hearsay, and it typically is not permitted unless there is an exception. The challenge in this case was determining whether the deposition testimony of the treating physicians fell under such an exception to the rule prohibiting hearsay. Under the Illinois Rules of Evidence, an exception to the bar on hearsay is made if the statement is given by a person who is an agent of the defendant at the time the statement is made. Although both parties conceded the physicians were agents of the defendant hospital during the plaintiff’s treatment, the defendants argued — and the appellate court agreed — their agency relationships with the hospital ceased to exist by the time these physicians gave their depositions, which they did years after the plaintiff’s treatment.
Despite the error by the trial court, the appellate court was not persuaded that it mattered to the outcome. The appellate court’s ruling is a reminder that defendants in medical malpractice actions must show not only that an error may have occurred, but they must demonstrate how any such errors likely changed the outcome of the trial. The key issue before the appellate court was not whether the trial court erred in permitting the testimony of the physicians, but instead, whether that decision affected the verdict. In other words, the defendant hospital and physician had to show they were prejudiced by the court erroneously allowing the testimony. They failed to show the outcome of the trial would have been different if the trial court did not err by allowing the testimony.
The case also underscores the importance of keeping contemporaneous medical records for hospital and physician defendants. Throughout the plaintiff’s postoperative decline, the medical records did not show the surgeon saw the patient at all. The plaintiff’s case rested in large part on the delay between the septic symptoms and when he was finally admitted to surgery. The plaintiff took advantage of this lapse in medical recordkeeping to obtain a large verdict.
Bad facts result in large awards. The case also shows that juries continue to assess large awards where they feel these are warranted by the circumstances. The plaintiff and his wife received more than $42 million because of the hospital’s negligence. The ordeal for the plaintiff was several weeks long, and the jury provided for future pain and suffering in its award. But the jury also went out of its way to send a message to the hospital that the delay between the onset of the plaintiff’s symptoms to the time a physician surgically addressed it should be punished.
Although it turned out to be of lesser importance, the case also underscores the importance of recognizing the temporal nature of agency relationships and careful attention to the rules of evidence. Here, that meant while treating physicians might act as agents of a medical facility during the patient’s treatment, the agency relationship does not extend beyond that period. Statements made outside this period are inadmissible hearsay. Although this error did not affect the outcome of this case, that was in large part due to the hospital’s failure to show how excluding such evidence would have affected the verdict.
Laparoscopic procedures have become more common because these help patients recover faster, leading to shorter hospital stays. Because the surgical field is narrow and consists of whatever the surgeon sees via the laparoscope, there is an increased risk for a missed perforation of nearby organs by the surgical blade as the surgeon maneuvers it. This risk must be explained to the patient as part of informed consent.
Postoperative assessments must include observations for signs of bleeding, infection, and most importantly, pain in the operative area that worsens rather than improves with time. Manual palpation of the surrounding area can reveal possible internal bleeding as well. If a patient continues to complain beyond a reasonable period or calls frequently with the same complaint, consider this a cry for help, and act quickly. In this case, the bowel perforation allowed unsterile bowel contents to enter the abdomen, resulting in sepsis. This was a medical emergency and required immediate surgical intervention.
Because many hospitals contract with hospitalist physician groups to manage inpatient care, the hospitalist may be the one contacted initially. That hospitalist must contact the primary surgeon to provide the needed care. Sometimes, especially if multiple physicians or specialists are involved in addition to the hospitalists, the hierarchy of care can be blurred. The medical record is the primary tool multiple physicians use to stay informed about the treatments, diagnostic studies, and medications ordered by all physicians in addition to their recommendations for the plan of care. Issues can arise when assumptions are made that someone else will take care of the issue, or the nurse will follow up. This role must be clear to all involved.
Communication is critical between all parties. Surgeons often will call on hospitalists to manage nonsurgical issues that develop, such as hypertension. This prevents polypharmacy events such as two different antihypertensives being prescribed. But the surgeon is the only physician that can repair the perforation. That responsibility cannot be delegated to others.
While this case may seem to present a complex web of legal intricacies, its lessons are the same as those found in most other cases with large verdicts: The failure to follow up on postoperative complications, despite a successful initial surgery, can be the cause of a lawsuit. Documentation of care given to a patient is essential, and lack thereof may be used by plaintiff attorneys in any subsequent lawsuit. Once involved in a litigation, understanding the rules of evidence and what a party must argue on appeal are crucial. Finally, judges may be inclined to respect large jury verdicts after multiweek trials.
REFERENCE
- Decided Sept. 15, 2023, in the First District Appellate Court of Illinois, Case No. 1-22-1430.
For medical professionals and the broader healthcare community, this case highlights several interesting issues.
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