Medical Malpractice


Pointing Fingers Sinks Everyone's Ship

When physicians or nurses in a medical malpractice case blame others for their troubles, juries often believe mistakes were made and that at least one of the defendants should pay the plaintiff. Often all the defendants end up paying. That's what happened after a general surgeon performed a left colon resection to treat diverticulitis in a 47-year-old man who died weeks later from sepsis caused by peritonitis (see "A Chronology: From Colon Resection to Sepsis and Death"). The anesthesiologist and the surgeon contributed equally to the $750,000 settlement.

Anesthesiologist thrown under the bus
The patient's estate sued the surgeon, the anesthesiologist and the hospital. The defendants' exposure was in the millions since the patient was young, had significant earning potential and left several dependent children. The claim against the surgeon surrounded:

  • his failure to place the nasogastric tube himself before the second bout of emesis;
  • his failure to explore the abdomen during the second procedure; and
  • his delay in operating a third time to ensure that the abdomen was not the source of the sepsis.

But why was the anesthesiologist sued? The surgeon wrote a second untimed post-op note mentioning "copious bile vomitus found around the endotracheal tube at the time of extubation." The anesthesiologist said that she didn't know of the note.

The surgeon reported this history to the ICU staff. The provisional diagnosis of post-operative aspiration was found repeatedly throughout the chart. During litigation, the surgeon testified that a nurse, whose identity he couldn't recall, told him about the vomit around the tube.

In court, the anesthesiologist vehemently denied that she'd have extubated a patient who wasn't conscious and stable. She testified that if she'd encountered a problem during extubation, she'd have noted and treated it. But the patient's level of consciousness and ability to communicate upon extubation wasn't clearly documented. OR and PACU personnel all denied being the source for the surgeon's second post-op note. They all said that if the patient had vomited, they'd have charted it.

The anesthesiologist's pathology expert couldn't identify the deposits in the lungs from the autopsy. He concluded that the patient never aspirated and died from sepsis caused by peritonitis.

The plaintiff's expert anesthesiologist believed that if the surgeon's note was accurate, the anesthesiologist didn't perform the extubation and aspiration on par with the standard of care. Generally, the anesthesiologist is responsible for developing and implementing procedures to reduce the risk of aspiration. The expert believed that the there was no evidence to show that proper measures were taken.

Anesthesiologist's position
The anesthesiologist argued that if the patient aspirated, it was before the second surgery — there was documented emesis — or during the nurses' attempts to pass the NG tube at bedside. She said she had suctioned a small amount of light green fluid at the time of placement of the NG tube just before the second surgery.

She denied that the patient aspirated upon extubation and said there was nothing in the medical record to suggest that the patient vomited, much less aspirated. She also referred to the notes regarding the transfer to PACU. The patient was arousable, although there was nothing in the chart to suggest that he was communicating appropriately at the time of extubation.

Alternatively, the anesthesiologist believed that the patient was already septic at the time of the dehiscence and that sepsis caused his sudden respiratory distress in the PACU. At the time of surgery, the patient had amber urine, a sign of dehydration, and abdominal pain five days after the first surgery. And, she argued, the surgeon never determined why the patient was retching and vomiting.

Unfortunately for the anesthesiologist, proving infection or sepsis as the cause of respiratory distress was difficult because the surgeon didn't order lab studies or explore the abdomen during the second surgery.

Surgeon's position
The surgeon believed that the anesthesiologist was responsible for the patient's respiratory distress and demise since the patient was in the PACU at the time. He said the patient most likely aspirated after the second surgery, per his note. He conceded that he couldn't identify the source of the information, but he stood by the note. He also pointed to the lack of documentation of the patient's level of consciousness at extubation.

The timing of the respiratory distress supported his determination of post-operative aspiration, he argued. Had the patient aspirated before surgery, the respiratory distress would have occurred before or during surgery. In this case, the respiratory distress occurred several hours after the documented pre-operative bouts of emesis. Lastly, the surgeon said there was very little, if any, evidence to show that the patient had an infection before closure of the dehiscence, and therefore infection couldn't have caused the patient's respiratory distress.

Everyone loses
When doctors point fingers at each other in court, the chance that one, let alone both, will escape liability decreases. A trial involves two diametrically opposed points of view. The plaintiff must prove that the defendants breached the standard of care and caused injury. Conversely, the defendants must weaken the credibility of the plaintiff's evidence to show that the plaintiff hasn't met his burden.

Jurors, typically laypeople, must within a few days understand the medicine so well that they can make credibility determinations among experts. This is difficult to do when doctors point fingers at each other.

Pointing fingers moves the defendants into the chair of the plaintiff. What begins as "plaintiff versus defendants A and B" devolves into "plaintiff and defendant A versus defendant B" and "plaintiff and defendant B versus defendant A." It quickly becomes apparent to the jury that at least one of the doctors breached the standard of care, caused injury and should compensate the patient. Often, it becomes too difficult for a jury to exonerate one of the defendants while finding the other liable, and the liability is shared equally.

Write it down
It's well known that while the surgeon is the "captain of the ship" in the operating room, the anesthesiologist is in charge while the patient is in the PACU. Therefore, the longer the patient remains in the PACU, the greater the anesthesiologist's exposure.

Proper documentation is important in each case. To mitigate her exposure, the anesthesiologist should have noted the patient's awareness, his ability to communicate and the steps taken to reduce the risk of aspiration. Had the anesthesiologist documented that the patient was alert and oriented and denied nausea at the time of extubation, she may not have been sued in the first place. OSM

A Chronology: From Colon Resection to Sepsis and Death

Six days after a left colon resection to treat diverticulitis, the 47-year-old patient at the center of this case took a short walk in the hall, but felt nauseous. He was still unable to urinate or move his bowels, his incision site oozed a moderate amount of sanguineous drainage and he'd vomited green bile-like fluid.

The hospital paged the surgeon, who ordered placement of a nasogastric tube. Despite several attempts, staff was unable to insert the NG tube. Staff neither documented this nor charted the patient's condition during these efforts. In fact, the patient's status wasn't charted from the time he was taken from the floor until he arrived in the OR.

The patient was scheduled for surgery to close the dehisced wound. The anesthesiologist managed to intubate the patient and pass the NG tube without difficulty. She also suctioned a small amount of light green secretion from the patient's larynx and from the endotracheal tube, but this wasn't documented.

In the OR, the surgeon closed the rupture, but didn't explore the abdomen. His first post-op progress note said that the patient was transferred to the PACU in stable condition. The anesthesiologist noted that the patient was suctioned and extubated, but the level of consciousness wasn't well-documented.

The patient was resting comfortably in the PACU with the NG tube in place. About an hour later, he complained of shortness of breath. His pulse oximetry saturation levels went down to 84 percent. A mask was placed and his head was repositioned. A chest X-ray showed bilateral infiltrates. The anesthesiologist reintubated the patient, who had a fever and an elevated white blood count.

The patient developed acute respiratory distress syndrome and sepsis. The physicians suspected an abdominal infection, but the patient was too sick for a CT scan. Several weeks later, a CT scan showed free air and fluid below the diaphragm. The surgeon ordered an exploratory laparotomy to identify the source of the infection. About 24 hours after the laparotomy, the patient ceased breathing and died. The autopsy listed the pathological diagnoses as sepsis, generalized peritonitis, status post-laparotomy, partial colon resection, bilateral fibrous pleuritis, acute hemorrhagic bronchopneumonia, pulmonary infarcts and chronic passive congestion of the lungs.

— Tyler J. Smith, JD

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