News: A man underwent successful hernia surgery. However, the next day, the patient suffered what he alleged to be a postoperative respiratory arrest. The patient blamed multiple care providers: the surgeon, the anesthesiologist, the hospital, and his primary care physician (PCP). Each defendant denied liability.
A trial court agreed that neither the surgeon nor the anesthesiologist committed malpractice and dismissed them before trial. A jury found that neither the hospital nor the PCP committed malpractice. The patient appealed, claiming that the jury erred in weighing the evidence and that the remaining defendants erroneously blamed the dismissed defendants. An appellate court rejected that argument and affirmed the verdict for the defendants.
Background: On July 27, 2015, a man underwent a hernia surgery. The surgery was performed without issue. Afterward, the patient’s wife and other family members reported the patient struggled to breathe. The following day, the patient suffered a postoperative respiratory arrest.
According to the patient, his PCP failed to list certain medications that the patient was taking for a respiratory condition on a presurgical clearance form that was forwarded to the hospital. Because of this, the hospital was unaware that the patient needed the medication to breathe, to prevent respiratory arrest, and to prevent coma.
The patient and his wife sued the hospital, the surgeon, the anesthesiologist, and the patient’s PCP. Before trial, the surgeon and the anesthesiologist filed motions for summary judgment, arguing that the evidence showed they adhered to the applicable standards of care and committed no malpractice. The trial court granted those motions and dismissed both care providers from the case. The matter proceeded to trial against the hospital and the patient’s PCP.
Both the hospital and PCP defended during the trial. The PCP admitted that she should have listed his medications but did not. However, the PCP defended on the basis that the physicians at the hospital were aware that the patient was taking those medications because they were documented in a medication list contained in the hospital chart. Moreover, the surgeon and the anesthesiologist had records listing the patient’s respiratory condition and medications. Additionally, the patient alleged that the hospital staff failed to appropriately respond to complaints by the patient’s family members that the patient was struggling to breathe.
During the trial, the patient’s experts testified that the hospital nurse’s failure to respond to his breathing complaints was a substantial factor in causing his respiratory arrest. Finally, the defendants argued that the patient was not in respiratory distress, but instead suffered a transient arrhythmia that was unrelated to the failure to take his medication. The defendants’ expert testified that other factors, including the patient’s obesity and long-term hypertension, contributed to the sudden rhythm disturbance of his heart.
The jury found that although the PCP departed from the applicable standards of care, the departure was not a substantial factor in causing the patient’s injuries. They also found that the hospital did not depart from the applicable standards of care. The patient appealed, arguing that the verdict was contrary to the weight of the evidence, and requested a new trial. He also argued that the remaining defendants — the hospital and PCP — attempted to deflect blame on the two dismissed defendants — the surgeon and anesthesiologist. The appellate court affirmed the verdict, ruling that the evidence supported the verdict and no error occurred. The court noted no shifting of blame to the dismissed defendants; the remaining defendants were permitted to discuss those care providers’ records and actions even though they had been dismissed.
What this means to you: This case has many lessons to learn from the multiple defendants, multiple theories of malpractice liability, and multiple defenses. Perhaps one of the more interesting aspects of this case relates to the patient’s PCP, who was one of the two remaining defendants when the matter proceeded to trial. The PCP admitted that she did not include the patient’s respiratory medications on the list — and the jury ultimately found that this was a departure from the applicable standard of care. Fortunately for the PCP, liability for medical malpractice requires more than a deviation from the applicable standard of care — the patient must suffer injury because of that deviation.
Here, the PCP argued that the patient’s injuries were not caused by her failure to note the medication on the requested list. This argument was supported by substantial written evidence, including the hospital’s and anesthesiologist’s records. Those records confirmed that the other care providers knew about the patient’s respiratory condition and that he was supposed to be taking certain medications. The PCP alleged that although she neglected to include the medication in the list, others knew about it anyway, so her shortcoming was inconsequential. The jury agreed with the PCP, finding that her departure was not a substantial factor in the patient’s injuries.
Moreover, both defendants presented expert testimony that the patient’s injury the day after his surgery was not caused by the medication issue. When there is an alternate cause, as here with the patient’s other contributing factors, a provider’s failure to adhere to the applicable standard of care may not be the substantial cause of the injury. The outcome of this case could have been different with another patient who had no other contributing factors, but here, the PCP and hospital proffered viable alternatives as to the cause of the patient’s injuries. Causation is a necessary element for medical malpractice, and this case offers insight into multiple methods for challenging a patient’s allegations of causation.
Even if a provider unquestionably fell below the standard of care, that does not automatically implicate malpractice liability. In defending against allegations of malpractice, it may be wise for providers to choose their battles. Acknowledging wrongdoing may garner the jury’s favor, and then the provider can attack the patient’s case by challenging a different element. Providers should consider with counsel how to capitalize on what would otherwise be damaging evidence. Here, if the PCP had denied that she failed to provide the medication on the list, it could have resulted in lost credibility, harming her case. Instead, she admitted her mistake and successfully defeated the patient’s case on causation.
Finally, note that medication reconciliation has been a standard of patient care for all providers and patients for some time. The patient has the responsibility to provide caregivers with a list of all medications taken at home, including vitamins, supplements, topicals, and anything else prescribed or over the counter. In turn, providers must update that list as changes occur and communicate those changes to patients and their families. Other providers, such as physician assistants and nurses, must review medication lists with patients on admission to healthcare facilities, at clinic or physician office visits, home visits, and any other encounter, including outpatient visits to surgery centers. These practices help avoid errors made by caregivers and harm suffered by patients who were not offered their routine medications in a healthcare setting outside of their own homes.
REFERENCE
- Decided Feb. 21, 2024, in the Supreme Court of the State of New York Appellate Division: Second Judicial Department, Case Number 702055/2017.
This case has many lessons to learn from the multiple defendants, multiple theories of malpractice liability, and multiple defenses. Perhaps one of the more interesting aspects of this case relates to the patient’s primary care physician, who was one of the two remaining defendants when the matter proceeded to trial.
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