Families are pivotal in helping patients recover. They advocate for their loved ones. They give encouragement to rehabilitate. They provide reasons to push harder to live. What happens when a patient deteriorates in front of the family and a code is called? Sometimes the family is ushered out of the room. Sometimes they are pushed to the side – allowed to stay as long as they do not get in the way.
A recent California case suggests that if close family members witness negligence in implementing a code – or calling a code too late – not only can the patient sue, so can the family.
In Keys v. Alta Bates Summit Medical Center, 2015 WL 1346310, the patient underwent thyroid surgery. When the patient was transferred from the recovery room to the floor, the nurse noticed “noisy” breathing- presumably stridor. One minute later, this nurse called the hospital’s rapid assessment team. They arrived at bedside 2 minutes later. There, the respiratory therapist suctioned secretions from the mouth. The surgeon arrived at bedside a few minutes later, repositioned the patient’s head, and again suctioned her mouth. He believed the patient had a growing hematoma, and started removing bandages and sutures at bedside. His plan was to take the pressure off the trachea.
Unfortunately, the patient stopped breathing and a code was called. The patient developed anoxic encephalopathy and died about a month later. The patient and family sued. The plaintiffs settled their claims against the surgeon prior to trial. The hospital was left as the sole defendant. The jury awarded the family $1M on wrongful death claims and $375,000 for claims of negligent infliction of emotional distress (a number that was subsequently reduced to $220,000).
What is negligent infliction of emotional distress? To prevail, the plaintiff must prove that he (a) was closely related to the injury victim; (b) was present at the scene of the injury-producing event as it happened and was aware it was causing injury to the victim; and (c) suffered severe emotional distress.
Being present at a code-blue might on the surface satisfy each of these requirements. But, the court asks for more. The bystander must actually witness the negligence. In this case, it was not argued that the growing neck hematoma was the result of negligence. Bleeding is understood to be a risk of thyroid surgery. What was argued was that remedial action was not taken quickly enough; that delay was negligent; and that negligence was witnessed by family members.
What would not qualify for negligent infliction of emotional distress? If the surgeon had committed negligence in the operating room and the patient coded but was timely resuscitated – even if the outcome was poor – that would not be negligent infliction of emotional distress. The key distinction is whether the bystander witnessed the actual negligence, not the outcome of negligence.
By analogy, imagine that a family is walking on the sidewalk and a car jumps the curb and hits the mother. The mother bleeds to death on the sidewalk. This event is witnessed by all other family members. This might qualify for negligent infliction of emotional distress… Now imagine that the mother was walking a block behind the family. A car jumps the curb and hits the mother. The family hears general commotion and runs back to the mother. The mother bleeds to death on the sidewalk. This probably does not qualify for negligent infliction of emotional distress….
In both scenarios the car’s driver was negligent. And the injured victim (or her estate) will be able to sue for negligence. But, in only one scenario will the bystanders be able to sue for negligent infliction of emotional distress….
Note, many states do not recognize a cause of action for negligent infliction of emotional distress….As the case above illustrates, California is an exception.
Food for thought next time you run a code.
Where was the NEGLIGENT Infliction of Emotional Distress? While it was distressful for the family to watch their relative strangulate from a rapidly expanding hematoma probably supplied by a thyroid artery that suddenly opened up, it sounds like everyone did their job in a remarkably short time; there was no delay, response described is far faster than usual & customary.
The thyroid gland has incredibly close proximity to the internal jugular veins, the common carotid arteries and even the brachiocephalic vein. Those are just the large blood vessels. It is literally a surgical mine field. Rather than a fast/slow growing hematoma, it is surprising that even more complications don’t occur. Perhaps a DPM shouldn’t comment on this, but from my point of view there sure are a lot of structures to watch for. This looks like a really difficult procedure.
It’s hard to figure out how the family was able to “identify” any negligence here. CPR is always brutal. It is designed to be. The rapid response team arrived 2 minutes after the recovery room nurse correctly described respiratory stridor. Mouth suctioning commenced immediately. The surgeon arrived very shortly after, but it is not known exactly how long, probably less than 5 minutes.
I wasn’t there, but it looks to me like the response time was exceptional and excellent. The recovery room nurse was outstanding. This was a terrible accident, likely a “nicked” blood vessel that was not quite bovied or tied off adequately. But that’s even a hard call, because blood vessels can appear to be quite “sealed” and still start to bleed when more circulatory pressure is applied behind it. This could easily occur in the recovery room.
Re-intubation by an anesthesiologist could also have made the blood vessel bleed even more due to the pressure of the trachea against the tied-off vessels. That step would not necessarily be a panacea. Sometimes even an airway can kill.
Nobody can know what really happened. Not even the surgeon. I’m sorry it happened, but from the article I cannot see any indication of negligence. Not even a little. The payments were made because they were made. But let’s not confuse this with a deviation of standard of care. Some people die after surgery. That’s why when your loved one goes for a surgery you give them a hug and a kiss and hope for the best. There are no guarantees.
Michael M. Rosenblatt, DPM
As always we are being sued for adverse outcomes and not negligence.
The problem is perception and jury incompetence. We don’t have professional jurors.
We have people who still believe doctors make a lot of money and deserve to pay out when an adverse outcome occurs. Forget about the fact that doctors come out now in debt as much as $300k (average being $227K) after medical school/ residency to then become target practice for malpractice attorneys, insurance companies and don’t forget the disrespectful patient.
Remember the doctor now has to deal with the internet and families questioning everything
On some level this is the medical community’s fault as we had inadequate supervision of our billing practices and insurance companies had step in since the 70’s were epitomized by doctors taking advantage of the situation. The simple fact now it that it is 2015 and the pendulum needs to start moving back toward the medical doctors because right now the best of the best are no longer choosing medicine and for good reason. Why would they??
Yes we need to do a better job of policing ourselves and we most certainly need to stop allowing providers to practice that we know are lacking clinical skills and acumen. This would be called protecting the integrity of our vocation but that highlights a much larger problem. Doctors as a whole are very arrogant and entitled and think they should be worshipped and bowed to. This demeanor must change as well if we are to see in our future any chance of the medical profession
restoring itself to some level of respectability. If we don’t then we will deal with the nonsense cases above.
I fully concur and I fully agree with the above comment by an “E.R. Physician” Moreover I am reminded of the classic, “If the law says this; then, the law is an ASS!” I would be honored, deeply honored to review any such matters for the DEFense. Sadly, although these suits are UNreasonable, I expect that there willo be more of them…many more!
Thyroidectomy surgery is delicate, difficult many times, and may be unforgiving to the patient and surgeon. More common complications encountered by thyroidectomy specialists include hypoparathyroidism and vocal paralysis. Bilateral vocal paralysis may cause stridor and necessitate tracheotomy, and hypocalcemia may lead to tetany. Either condition unrecognized may be lethal.
Four years ago, typical third party reimbursement for hemithyroidectomy was around $700 or less. If malignancy was discovered on frozen section, total thyroidectomy reimbursed around $1,000. Either fee would include a hospital visit the following morning to change the dressing, inspect the wound, remove a drain, and discharge the hopefully stable patient with a normal voice, normocalcemia, and a normal wound – typically a 30 minute encounter at best. Suture removal a week later was also included in the fee.
This case illustrates the nearly unfathomable liability thyroidectomy surgeons face every time they walk into the operating room.
Thank you.
Great examples of what exactly would qualify as negligent infliction of emotional distress. They made this very easy to understand. Thanks so much for sharing!