Medical Malpractice
$650,000 RECOVERY – Medical Malpractice – Failure of graduate nurse anesthetist to properly apply pressure to cricoid cartilage of trachea after esophageal intubation – aspiration of particulate matter – ARDS – Death of 45-year-old widow – Informed consent issue relating to initial attempt at intubation by nurse anesthetist.
Monmouth County
This medical malpractice death action involved a 45-year-old decedent who died 18 days after complications arose involving an esophageal intubation. The plaintiff alleged negligent failure of the defendant graduate nurse anesthetist to properly apply pressure on the cricoid cartilage of the trachea to minimize aspiration in the event of a mistaken esophageal intubation as the defendant anesthesiologist completed the intubation into the trachea. The plaintiff contended that the use of cricoid pressure in this situation involving a rapid sequence intubation was especially necessary because the patient would quickly loose the gag reflex and would be particularly vulnerable to aspiration in the event of such a complication. The plaintiff contended that an extensive amount of material including particulate matter was aspirated, causing Adult Respiratory Distress Syndrome (ARDS). The plaintiff also contended that initially, the graduate nurse anesthetist, who had yet to take his licensing exam, had attempted the intubation as the anesthesiologist was applying cricoid pressure. The anesthesiologist switched places with the nurse anesthetist when it became apparent that an esophageal intubation occurred and the nurse anesthetist’s application of cricoid pressure began simultaneously with the release of such pressure by the anesthesiologist. The plaintiff contended that although an esophageal intubation, which is immediately recognized is not a deviation, the facts reflected that the graduate nurse anesthetist had performed the intubation without the informed consent of the patient, which was a deviation. The decedent’s husband had predeceased her, and she left behind an adult son who was not receiving financial contributions from her, therefore, the plaintiff’s primary claim was for the decedent’s alleged pain and suffering during the 18-day period between the intubation and the death.
The evidence disclosed that the decedent was admitted with a several week history in which the abdomen was becoming progressively distended. Testing disclosed the presence of a partially obstructing tumor that was found to be cancerous and a decision to surgically remove the tumor was made. The patient was placed on a gentle bowel prep program for four days before the surgery was performed in order to help to relieve the distention. She was able to pass some stool and fluids. An attempt to use an NG tube was made, but the patient could not tolerate the tube and it was used for a brief period only. The anesthesiologist made the judgment after four days that the distension had improved sufficiently to perform the surgery.
The evidence revealed that the anesthesiologist permitted the graduate nurse anesthetist to attempt the intubation. As the nurse anesthetist was doing so, the anesthesiologist applied pressure on the cricoid cartilage in the trachea to minimize the risk of regurgitation and aspiration in the event of a mistaken esophageal intubation. When the anesthesiologist observed signs that an esophageal intubation had occurred, he ordered the nurse anesthetist to begin applying cricoid pressure while he reintubated into the trachea. The anesthesiologist maintained that as he was beginning the intubation process, he observed a rush of emesis. The anesthesiologist was ultimately able to intubate the patient and a determination was made that because of the additional risk of a prolonged surgery, a diverting colostomy would be created, rather than the tumor being removed during this surgery and that the tumor would be excised after the patient stabilized. The plaintiff contended that the decedent did not stabilize and was intermittently conscious and in significant distress over the ensuing 18-day period until she succumbed.
The plaintiff’s expert anesthesiologist would have contended that since an esophageal intubation is a recognized complication, it is essential to administer cricoid pressure in a proper manner to minimize the risk of aspiration. The expert would have maintained that particulate matter was discovered in the lungs on autopsy and would have opined that such a finding definitively established that more than a small amount of material that could enter the lungs upon the proper use of such pressure had, in fact, aspirated. The expert would have contended that such extensive aspiration led to ARDS, which ultimately took the patient’s life.
The plaintiff further contended that the patient was not advised that an individual other than an anesthesiologist would be intubating the patient. The plaintiff contended that although an initial esophageal intubation can occur in the absence of negligence and although the complication was immediately recognized as required by the standard of care, the absence of informed consent was an additional basis to establish liability. The plaintiff contended that although the administrative code would permit the nurse anesthetist to perform the hospital’s own protocol reflected that a nurse anesthetist must be certified to do so and that the hospital violated its own protocol.
The evidence disclosed that the patient developed ARDS shortly after the intubation and died 18 days later. The plaintiff would have contended through various family members who visited her that the decedent was conscious through a significant portion of this period. The witnesses would have related that although the patient who was on a ventilator and could not speak, she was conscious and able to communicate to some degree by squeezing her visitor’s hand. The family members indicated that the decedent appeared very anxious. The defendant denied that the patient had the level of consciousness claimed, but conceded, as per the records, that there was some level of consciousness for the first five to six days. The decedent’s husband had predeceased her and the decedent left an adult son who was not financially dependent upon her.
The case settled shortly before trial for $650,000. It should be noted that the defendant anesthesiologist did not contribute to the settlement.
Reference
Plaintiff’s anesthesiologist: Sheldon Deluty from Manhattan.
Plt: Stafford Docket no. MON-L-2397-97; 4-02.
The Law Office of Miller & Gaudio PC in Red Bank.
Commentary:
The plaintiff could present very little proof of pecuniary loss in this case in which the decedent was widowed, her adult son did not receive contributions from her or depend upon her for unusually extensive guidance and advice. Thus, the predominant portion of the plaintiff’s claim was for the conscious pain and suffering experienced by the decedent over the 18-day period between the time of the intubation and her death. It is felt that the plaintiff was able to obtain a substantial recovery in view of the fact that the primary evidence relating to such conscious pain and suffering stemmed from observations made by family members who indicated that they communicated with the decedent, who was on a ventilator, by having her squeeze their hands and who also described great anxiety on her face. Additionally, the hospital records reflected a significant level of consciousness for five to six days only.
It is felt that the nature of this case in which the plaintiff would have had dual theories, including an argument that a significant amount of particulate matter had aspirated, reflecting a failure on the part of the graduate nurse anesthetist to adequately apply cricoid pressure to prevent such material from entering the trachea, and an informed consent aspect in which the plaintiff contended that the patient was not advised that an individual other than an anesthesiologist would attempt the intubation, could well have created a strong jury response and that this factor provided significant leverage to the plaintiff during negotiations. Finally, the decedent was suffering from colon cancer and the plaintiff would have argued that signs, including negative pelvic washings, tended to provide an optimistic prognosis. Furthermore, the plaintiff would have also argued that the defendant had not presented any evidence to support a claim for a Scafidi reduction and was planning to move in limine on this issue as of the time of settlement.
