When a patient's family files a malpractice suit, the defendants should do their best to work together and stay together. But sometimes, as this case illustrates, the defendants' positions are so diametrically opposed that the temptation to point fingers at the other defendant is too great. When that happens, all the plaintiff needs to do is sit back and watch the defendants shoot at each other, almost ensuring a plaintiff's verdict.

Deviated trachea
A generally healthy, 52-year-old woman was hospitalized after an episode of severe shortness of breath. In the emergency department she was intubated and admitted to the special care unit. During the next 3 days, X-rays taken showed an abnormal finding: that the trachea was deviated to the right.

In his report, the radiologist didn't note that the deviation was abnormal, since he didn't have any clinical information telling him that the patient was suffering from a respiratory problem. He believed that the deviation in the X-rays was caused by the patient's position during imaging.

The next day a pulmonologist performed a bronchoscopy, which didn't reveal any obvious constriction of the trachea or any external compression. However, when he removed the endotracheal tube, the patient began to develop respiratory distress and needed to be re-intubated. As a result, the physician couldn't evaluate the lower airway. In his report, the pulmonologist noted only a laryngeal edema, implying that the lower part of the airway, which he couldn't examine, was normal. He recommended a tracheostomy to better determine the etiology of the patient's breathing problems. He didn't order a CT scan.

On the morning of surgery, the anesthesiologist evaluated the patient, but he didn't detect the deviated trachea. He reported that the anticipated risk in the procedure was a 4 on a scale of 1 to 5. But he noted that the family "thought the surgery needed to be done" because of the risk of extubation. A nurse anesthetist administered local anesthesia along with fentanyl, versed and propofol for sedation. The anesthesiologist removed the naso-tracheal tube above the vocal cords so that the surgeon could perform the tracheostomy. The surgeon made an incision and inserted a trach tube.

Almost immediately, the patient experienced a drop in oxygen saturation and no end-tidal CO2 was evident. The surgeon and anesthesiologist removed and replaced the trach tube 3 times. After a few minutes, the patient died on the operating table. The autopsy found a large goiter, measuring 12cm by 6cm and weighing 70g, on the left side of the neck next to the trachea.

The lawsuit in a nutshell
The patient's family sued the physicians and the hospital for negligence. The daughter testified that she could see a lump on her mother's neck when she turned her head to the right, but this was never noted on any exam. During the case, the plaintiff's experts criticized the radiologist, pulmonologist, anesthesiologist and surgeon. During testimony, the radiologist essentially admitted negligence for failing to note the abnormal deviation in the trachea. The plaintiff's experts claimed that all of the physicians, including the anesthesiologist, should have been aware of the risks and possible causes of the deviated trachea, even if the radiologist didn't report it as abnormal. Someone should have considered a CT scan.

The plaintiff's experts, later joined by experts for the radiologist and the pulmonologist, said that it was below the standard of care for the anesthesiologist to remove the endotracheal tube entirely. In return, the anesthesiologist's experts said that this would only be true if a difficult airway existed. The anesthesiologist argued the patient didn't have a difficult airway because she'd been successfully re-intubated earlier during her hospitalization. The anesthesiologist's experts also argued that the average anesthesiologist would assume there was no external compression based on the bronchoscopy report.

Finally, the anesthesiologist's experts argued that even if everyone in the OR knew that the patient had a substernal goiter before the emergency occurred, they wouldn't have had time to save her. To save her, they would have had to have equipment for rigid bronchoscopy or cardiopulmonary bypass on standby.

Playing the blame game
Unfortunately, each of the defendants thought that the best defense was to point fingers at the other defendants. Here's how they aligned.

• Radiologist and pulmonologist. Experts for the radiologist and pulmonologist remarkably argued that the tracheostomy tube was inserted into the pre-tracheal space. They claimed that only this sequence of events could account for the fact that no carbon dioxide returned after the tracheostomy tube was placed. They rejected any notion of the possibility of compression below the level of the tracheostomy tube accounting for the inability of the anesthesiologist and the surgeon to ventilate this patient successfully. They argued that the nasotracheal tube adequately oxygenated the patient for several days before the tracheostomy was performed. The tracheostomy tube and the nasotracheal tube tips would have been at almost the identical location once the tracheostomy tube was substituted for the nasotracheal tube. Therefore, if the nasotracheal tube had adequately oxygenated the patient, there's no reason to believe that the tracheostomy tube wouldn't have similarly oxygenated the patient if, in fact, the tracheostomy tube had been placed in the trachea.
• Surgeon and anesthesiologist. Their experts testified that if the tracheostomy tube had been in the pre-tracheal space, or a false passage, then subcutaneous air would have been present on the neck and chest. If this were the case, one expert argued, the patient's body would have "puffed out like a Peking duck." Furthermore, they argued that the pathologist noted a patent tracheostomy opening and didn't mention a false passage. Ultimately, these experts opined that when the endotracheal tube was removed, in essence the trachea's support structure was eliminated, causing the pressure that had developed over a 5- to 6-day period, with greater pressure by the 11th day, to compress the trachea so much that a tube could not be put back in.

Last man standing loses
This case settled for what one could argue was 4 times the amount for which it should have settled. The plaintiffs may have settled for less if each defendant had acknowledged their independent pro rata shares of exposure before trial and collectively tried to reach an agreement with the plaintiff. Because the defendants were so focused on blaming each other, the plaintiff was able to strike separate settlements with each defendant in domino fashion in the days before the trial. The last remaining defendants had to pay substantially out of fear that they'd be the last man standing, or the ultimate loser.