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: On Feb. 8, 2023, a jury returned a $4.36 million verdict against a heart center and a cardiac surgeon after a six-day trial focusing on the wrongful death of a musician and restaurant owner following a routine, elective diagnostic cardiac procedure. The jury found the patient suffered a fatal ventricle perforation while undergoing a diagnostic cardiac catheterization due to the surgeon’s malpractice. The jury also found the heart center was responsible for its employee’s negligence. After 16 hours of deliberation, the jury awarded $3.8 million for the value of decedent’s life, $500,000 for pain and suffering, and $60,000 in medical and funeral expenses.
Background: In August 2017, the patient underwent an elective diagnostic cardiac catheterization. The procedure requires three angiograms to assess blood flow. During the first of the three angiograms, the surgeon tore and perforated the patient’s left ventricle wall by inserting a multipurpose catheter into the ventricle wall and injecting radiocontrast into the heart. The tear and perforation in the left ventricle wall caused radiocontrast staining, indicating hemorrhagic injury. The surgeon failed to recognize the perforation, failed to take corrective measures to address the problem, and continued with the cardiac catheterization. Moreover, the surgeon did not mention in his postoperative notes the left ventricle was bleeding and did not note any injury until after the patient’s death.
Shortly after surgery, the patient complained of “10/10” chest pain. The surgeon reviewed echo images, which revealed bleeding around the heart caused by the catheter-related ventricular wall perforation. The patient underwent exploratory surgery to fix the perforation, but he did not survive. The patient was pronounced dead three hours after the initial procedure.
The jury determined the surgeon was negligent when he forcibly penetrated the patient’s left ventricle wall and continued to inject radiocontrast, despite visual evidence of radiocontrast staining and ventral wall injury and perforation. They also found the surgeon failed to recognize the problem while continuing with the additional ventriculograms and did not take corrective action. The surgeon’s employer also was found responsible for that negligence. However, the jury noted they did not believe the surgeon and the heart center showed “a want of care sufficient to rise to the level of conscious indifference to consequences.”
Attorneys for patient’s family stated they “sincerely hope this verdict sends a clear message about the important responsibility physicians have to provide the quality of care required by law to every patient.”
Attorneys for the defendants were disappointed with the jury’s verdict but were proud to “represent an excellent cardiologist who provided excellent care in a very difficult situation when a complication occurred during a procedure.” The attorneys indicated they are considering an appeal.
What this means to you: This case highlights both the direct and indirect liability in a medical malpractice action, particularly where the negligent acts are performed by an employee. Here, the principal issue is whether the surgeon failed to exercise reasonable care and diligence in performing the cardiac catheterization procedures, and whether said failure caused the patient’s death.
Generally, a physician is required to possess the requisite knowledge of an average member of the medical profession, is required to exercise reasonable care and diligence in providing care, and is required to use his or her best judgment when applying this knowledge and skill. Malpractice can arise from a lack of knowledge, lack of ability, and failure to exercise reasonable care or failure to use one’s best judgment. Frequently, the physician’s knowledge, ability, and judgment are inextricably interwoven in an assessment of whether there is a deviation from accepted standards of medical care. If a physician in the same or similar circumstances, would have performed the procedure differently or with more precision, would have reviewed the angiograms differently and/or would have caught the mistake before completing the procedure (e.g., in the second or third angiogram), then a failure to do so may constitute a deviation from the applicable standards of care.
Also, in this case, there was visible evidence of a ventricular penetration from the catheter. The excessive bleeding from the chamber wall was immediately noticeable. The surgeon should have stopped the procedure and began emergent corrective procedures. The fact this surgeon did not notice and continued the procedure is compounded by his additional failure to document any issues in his operative report.
The operative report is a critical part of the medical record. It must be completed as close to the time of the procedure as possible so data are accurately recorded while fresh in the surgeon’s mind. It is difficult for anyone to put details of an error into a legal document. But thorough documentation of corrective actions and rapid disclosure of the error to the patient can make a huge difference to a jury or settlement outcome.
Medical experts are key in addressing the standard of care and whether the facts demonstrate any deviation. Since the practice of medicine is a highly skilled and highly specialized field, it is critical experts possess the requisite skill, knowledge, and experience to persuasively testify about pertinent issues. In this case, the critical malpractice was a perforation of the ventricle. Testimony from the defense focused on the known risks of the diagnostic procedure, whereas the plaintiff’s experts argued a ventricle perforation and subsequent failure to identify and treat the error constituted a deviation from the reasonable standard of care for a heart surgeon. In a malpractice action, retaining a qualified expert is critically important for defendants. An unbelievable expert, or the wrong expert, can be fatal for a care provider’s defense. Challenging an opposing party’s expert also could be a valid defense tactic. Although the jury in this case ultimately accepted the version proffered by the plaintiff’s experts, a full and effective challenge to those opinions, accompanied by a reasoned alternate opinion as to causation, may be the difference in successfully defending a malpractice action.
Vicarious liability — or respondeat superior — occurs when a parent or superior entity, such as the hospital or surgical center, is held responsible for the negligence of its employees. Respondeat superior applies if:
- the employee committed negligence during work hours;
- the negligence occurred while the employee performed a task he or she was hired and paid to perform;
- the activity benefitted the hospital in some way.
A healthcare facility may employ both full-time physicians and independent contractors. The latter may work at the facility outside the scope of work and for personal profit, while full-time employees work only during set hours. A hospital also has a right to control over a full-time employee. This entails the right to define the method a physician may use to admit, evaluate, and treat a patient. A hospital with this right may be held liable for a provider’s negligence. Where this right does not exist, vicarious liability may be harder to establish.
Finally, medical malpractice litigation is inherently unpredictable, partly because of this discretion vested with the jury. Regardless of the strength or weaknesses of a care provider’s case, it is important to evaluate and pursue settlement discussions while defending the litigation. There are many different potential paths to settlement, whether through formal mediation supported by a third-party mediator or through direct discussions between counsel for the parties. Providers should closely consult with counsel about options for alternative dispute resolution to prevent runaway or overzealous juries that award tens to hundreds of millions of dollars in damages.
REFERENCE
- Decided Feb. 8, 2023, in the State Court of Clarke County, Georgia, Case Number ST19CV0336.
This case highlights both the direct and indirect liability in a medical malpractice action, particularly where the negligent acts are performed by an employee. Here, the principal issue is whether the surgeon failed to exercise reasonable care and diligence in performing the cardiac catheterization procedures, and whether said failure caused the patient’s death.
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