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$500,000 Medical Malpractice

Settlement Amount: $500,000

Action: Medical Malpractice

Date of Settlement: September 21, 2010

Description: Decedent, a sixty six year old woman, presented to a hospital with complaints of shortness of breath, coughing, and blood tinged sputum. It was discovered that a tumor was partially obstructing her right upper lobe bronchus and she was admitted for a laser bronchoscopy. This procedure involved passing a flexible bronchoscope inside an endotracheal tube and down the patient’s throat into her airway. A flexible laser fiber was then passed down inside the bronchoscope, until it came out the other end and could be fired when the surgeon stepped on a foot switch. The purpose of the laser bronchoscopy was to at least partially resect the tumor and open up her airway.

While firing the laser, the defendant surgeon set the decedent on fire. The fire lasted at least seven or eight seconds until the defendant surgeon extinguished it by disconnecting the endotracheal tube and blowing down it. The decedent sustained extensive burn injuries to her airway and was transferred to the ICU where she was put on a ventilator. She passed away approximately six and a half weeks later from her injuries.

Plaintiff brought suit against the defendant surgeon both for negligently causing the fire and by exacerbating the damage by his actions once the fire occurred. Plaintiff was prepared to offer expert testimony from an interventional pulmonologist, who was one of the pioneers in laser bronchscopy, that the fire was caused because the surgeon negligently placed the tip of the laser too close to the bronchoscope and endotracheal tube, setting them both on fire (both showed clear evidence of burn damage). Plaintiff’s expert pulmonologist would also have testified that use of a rigid bronchoscope, made of metal, rather than the flexible scope used by the defendant, would have eliminated any risk of fire. Plaintiff was also prepared to offer testimony from a forensic pathologist that when the defendant blew down the endotracheal tube he spread the fire damage and burns throughout both lungs thus dramatically increasing the severity of the decedent’s injuries. Plaintiff intended to argue that the defendant surgeon’s negligence stemmed from his relative lack of experience and practice in performing the procedure. As there were two recognized centers of excellence for performing this procedure in the same geographic area, plaintiff would have argued that defendant was negligent in not referring plaintiff to one of those facilities for the laser bronchoscopy.  The defendant surgeon agreed that the two recognized causes of fires during laser bronchoscopies were either the surgeon placing the laser tip too close to the endotracheal tube orthe anesthesiologist delivering too high an oxygen concentration to the patient. He also testified that the oxygen concentration was at the appropriate level. Nonetheless, the defendant surgeon denied any responsibility for the fire, theorizing that it occurred due to his hitting an air pocket with a higher oxygen concentration when he lasered through the decedent’s tumor. This novel theory was unsupported by any medical literature or any other medical witness in the case. After plaintiff conducted discovery on the repair and maintenance of the equipment used, the defendant finally conceded that he was not alleging any equipment defect caused the fire.

Shortly before the fire, the attending anesthesiologist was called from the room, leaving a resident anesthesiologist to administer oxygen and monitor the patient. Both anesthesiologists and abundant medical literature agreed that in the event of a laser fire the anesthesiologist is responsible for immediately turning off the gases to the patient and removing the endotracheal tube, to minimize the burn injury. The resident admitted that he did not do this, and that it was not done until minutes later when the attending anesthesiologist returned, but claimed that this was because he was unaware that there was a fire. This testimony was contradicted by the defendant surgeon and the nurse laser operator both of whom testified that the surgeon promptly advised everyone of the fire. Accordingly, the Complaint was amended to add the resident anesthesiologist as a defendant.

The defendants vigorously contested the extent of plaintiff’s damages. It was anticipated they would argue that the decedent had terminal cancer with at best approximately thirteen months to live. The decedent’s children were all adults, living out of state, for whom she provided no economic support. The defendants maintained that the decedent was estranged from her children, all of whom she had disinherited in her will, and one of whom she had not spoken to in years. They also contended that the decedent’s conscious pain and suffering was minimal as she was unconscious for much of her remaining time after the fire and on effective pain drugs at all times. Moreover, the decedent’s best friend and roommate, who was the taker under her will, subsequently passed away, meaning that the taker of any pain and suffering damages would not have a direct connection with the decedent.

In response, plaintiff was prepared to demonstrate that the decedent had an on-going involved relationship with her two daughters and that her son was attempting to repair their relationship at the time of the incident. Plaintiff would have also pointed out that the decedent’s will was prepared when she had no significant assets to distribute and that it was primarily concerned with funeral arrangements. Plaintiff would also have presented evidence of numerous e-mails and telephone calls between the decedent and her children and that plaintiff had dinner with her eldest daughter the weekend before the fire.

Plaintiff also argued that the decedent’s pain and suffering was substantial. Entries in the medical records and the testimony of her children documented that she was frequently awake, responsive and aware what had happened to her. Plaintiff would have presented expert testimony concerning the repeated unsuccessful attempts to decrease her sedation and wean her from the ventilator and what this would have entailed for her.

The case resolved shortly before the Pre-Trial Conference and while still awaiting a tribunal to be conducted as to the defendant resident anesthesiologist. In addition to the settlement amount above, the hospital where the incident occurred agreed to forego collection of its substantial bills related to decedent’s post incident treatment.

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