Complications During IV Sedation Leads to a Malpractice Lawsuit. 

Background Facts

S was a retired 73-year-old male, who presented to his gastroenterologist, Dr. C, for a routine colonoscopy. His most recent prior procedure was approximately 10 years ago, with no abnormal findings and no procedural complications. At 5’8″ and 235 pounds, his BMI was 35.7. He took oral hypoglycemic medication to treat his type II diabetes, with his usual A1c levels varying between 7.8 and 8.1%. His hypertension was treated with a beta blocker, providing adequate control generally, although episodically labile.

On the day of the procedure, S presented at 10:30am, NPO since 8pm the evening before, having taken his usual medications at about 7:30am, as he did daily and had previously been instructed to do for the treatment day by the office receptionist. The board-certified anesthesiologist, Dr. H, whom S had never met previously, came into the treatment room at 11:10, briefly looked at the medical history forms completed by S but had no discussions with S – as the office was running late – and advised S that “I’ll be sedating you today so that you’re comfortable during the colonoscopy.” That was followed by, “do you have any questions?,” to which S responded “no.” S had signed a “consent form” for “colonoscopy with conscious sedation” while still in the waiting room.

S was classified by Dr. H as an ASA II patient, based upon the updated medical history he submitted via the online portal.

Dr. H started an IV, attached monitoring devices (automatic BP cuff, pulse oximeter, EKG) and recorded baselines, put nasal prongs for O2 delivery onto S, placed S into a left lateral decubitus position in preparation for the procedure, with the help of a medical assistant. As soon as Dr. C came into the room, Dr. H injected Propofol and Versed through the IV access. (Where that drug combination placed S on the spectrum of sedation versus general anesthesia was entirely dependent upon S’s individual physiologic responses.) Shortly after, S exhibited loud, labored breathing, with his SpO2 dropping from the initial 96% to 92% in less than a minute. He became tachycardic and increasingly hypotensive. The oxygen saturation continued to drop into the low 80s, as he demonstrated an asynchronous rhythm. At this point, S was moved back into a supine position as positive pressure oxygen was delivered by Dr. H through a full face mask with an Ambu bag. S could not be resuscitated despite attempts made by both Dr. H and Dr. C, as his cardiorespiratory status rapidly and steadily deteriorated. The cause of death noted in the autopsy was “cardiopulmonary failure from hypoxia secondary to respiratory depressant medications during colonoscopy under sedation.”

Legal Action

After S’s estate was set up, the executrix, S’s wife, worked with a well-known local attorney, who obtained S’s medical records, most significantly those from the office of Dr. C, and had them reviewed by an anesthesiologist and a gastroenterologist, both of whom advertised their “expert services” through a number of sources. The anesthesiologist concluded that Dr. H had made a series of medical errors which, in his opinion, led to S’s death, and the gastroenterologist faulted Dr. C in his role as “captain of the ship” and in poor office staff management, both of which contributed to S’s death. An action for wrongful death was filed against both doctors.

Dr. H and Dr. C were insured for professional liability (malpractice) by different carriers, but both reported to their respective carriers having been served with papers, after which different defense counsel were assigned to the two defendants. Dr. C, whose policy provisions included pure-consent as to settlement (meaning that no settlement could take place without his consent), set forth clearly to his counsel that he would not settle under any conditions. Dr. H had no such policy provision, so his carrier had the right to (try to) settle the case, as to him only, whether or not he agreed.

As depositions and other facets of discovery took place, the anesthesiology expert retained by Dr. H’s carrier and counsel was unsupportive of several aspects of his care: inadequate pre-procedure evaluation and work-up; incorrect assessment of S’s ASA status; lack of consideration of S’s NPO status in the face of his having taken his usual hypoglycemic medication; and failure to consider and address the effects of obesity on S’s respiratory ability in decubitus position, especially in the presence of respiratory depressants. Dr. H’s carrier sought to reach a settlement, a decision with which Dr. H ultimately agreed, and it was reached, with the assistance of a trained mediator to aid in resolving case value disagreements.

Dr. C’s expert gastroenterologist was generally supportive of Dr. C’s care. While she was critical of Dr. C’s receptionist providing advice to S regarding medications to be taken on the day of treatment, without Dr. C directing that, the expert did not see that as ultimately playing a role in S’s death. The expert saw the “captain of the ship” approach by plaintiff’s counsel as insignificant, especially with Dr. H having already settled. So, Dr. C, in conjunction with his counsel and carrier, jointly decided to take a “no-pay” stance and force a trial, with Dr. C being the only defendant still in the case. As the trial approached, the attorney for the plaintiff – the estate – discontinued the case against Dr. C, ending the matter in its entirety.

Takeaways

Physicians, quite understandably, view malpractice lawsuits as questioning their professional skills, their reputations, and their professional judgment, and the outcomes might even affect their ability to maintain or seek hospital privileges. It is a far different situation from being sued for involvement in an automobile accident, where the insurance carrier can generally settle a case, whether the car owner agrees or not. Consequently, the value of a consent-to-settle provision in a malpractice policy cannot be overstated. While MedPro offers this provision to its insured physicians, allowing them the opportunity to withhold settlement authority, many other carriers do not, taking away that one aspect of controlling their own legal destinies.

As with a host of issues in the practice of medicine, legitimate differences of opinion often exist when it comes down to assessing a physician’s abiding by standard-of-care principles. In this case study, those issues included patient health assessment and classification, NPO status of diabetics, and the effects of multiple controlled substances in an obese, older patient, none of which we either criticize or support here. This case might just as easily have hinged upon other or additional areas of inquiry, demonstrating the uniqueness of every single case situation. Expert opinions from potential defense experts need to be candid, if not always supportive, in order for measured decisions about case proceedings to be made by way of a team approach, between the insured physician, defense counsel, and the insurer. MedPro seeks and fosters that relationship at every significant litigation step, with differing views all playing their part in meaningful decision-making, the cornerstone of client advocacy.

ASA classifications might be viewed as debatable fixed points. Multiple medical factors, each one of which, alone, would place a patient into a class II category, could be considered to elevate the patient to class III by some practitioners, while others may well see that same patient as class II. What decisions practitioners make based upon any categorization is their own personal judgment, but there should be an awareness that a potential opposing expert could be critical of that exercise of judgment and see it as a deviation from the standard of care. Such is the world of litigation.

We note that informed consent is a process by which a patient is made an informed consumer, by way of conversation between doctor and patient, prior to the start of a procedure. Adequate informed consent is not merely a signed piece of paper, so having a patient sign a document entitled “consent form” while sitting in a waiting room will not likely pass muster if challenged in litigation.

The role of Dr. C’s (lay) receptionist providing what amounted to medical advice turned out in this case not to be a significant player. But that is not always the case, with such advice sometimes leading directly to an unsatisfactory, or even tragic, result. When that occurs, the liability falls upon the doctor or the practice entity – if one exists – through a legal concept known as vicarious liability, so determining whether one’s malpractice policy covers such actions is unquestionably important. Common circumstances where the statements or even advice of a non-professional might have severe impacts include the reporting by a patient of side effects of prescribed medications, complaints of post-procedure swelling or pain, or the providing of test (including biopsy) results to patients. The value of office administrative staff members is crucial to the smooth and effective running of a professional practice. To that end, staff appropriately manage such duties as routine appointment scheduling, billing, insurance submissions, employee issues, and payroll – but providing medical advice to patients is not among those duties.

Finally, we draw attention to a fact briefly mentioned in the case, namely the stresses and impacts of offices running behind schedule. Aside from magnified clinical concerns, like elongated periods of fasting (especially in diabetic patients), patients might become short with staff, angry, or internally distressed, and practitioners might be faced with patients with whom they start off on the wrong foot, or who will post negatively on social media. But delays cannot serve as a viable reason to take shortcuts with patient care. While there is no certain way to fully avoid the delays that happen with virtually all practitioners, keeping patients apprised of them, perhaps even before they make their way to the office, can go a long way toward greater patient satisfaction. And all else being equal, satisfied patients are less likely to sue, at least intuitively speaking.

Note that this case presentation includes circumstances from several different closed cases, in order to demonstrate certain legal and risk management principles, and that identifying facts and personal characteristics were modified to protect identities. The content within is not the original work of MedPro Group but has been published with consent of the author. Nothing contained in this article should be construed as legal, medical, or dental advice. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your personal or business attorney or other professional advisors if you have any questions related to your legal or medical obligations or rights, state or federal laws, contract interpretation, or other legal questions.