A patient was rushed to the E.R. after a lawnmower lacerated his forearm. Sitting on the counter was a product called CaviCide. What’s CaviCide? An industrial strength pesticide. Absolutely not for human use. Which, of course, is precisely why the attending physician and his nurse sprayed it repeatedly into the patient’s gaping wound.

How did this happen? Why was an industrial strength pesticide present in the treatment room? And why did the jury deliver a defense verdict? It’s a complicated case. Let’s dive in.

Listen to the podcast on the embedded player below – or click here to read the episode transcript.

Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief) and a meritless litigation. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, request a consultation.

Episode Transcript

Jeff Segal, MD, JD

Welcome to the Medical Liability Minute. It’s a podcast where we summarize medico-legal threats to doctors in 15 minutes or less, so you can continue practicing great medicine with peace of mind. I’m your host, Dr. Jeff Segal, Founder and CEO of Medical Justice, an organization dedicated to protecting doctors from frivolous lawsuits, internet libel, unwarranted demands for refunds, and a host of other medico-legal threats. I’m joined today by my co-host, Mike Sacopulos, JD, who serves as our organization’s General Counsel.

Great to have you with us, Mike.

Mike Sacopulos, JD

Thanks for having me. Let’s dive in.

Jeff Segal, MD, JD

We’ve got two cases today. What do they have in common? Both cases stemmed from external substances injected or applied to the patients’ bodies. The first case resulted in a defense verdict. The doctor prevailed. But the doctor in the second case was not so lucky. In that case, the patient collected $14,000,000. Those are some pretty sizable book ends.

Let’s start with the case where the doctor prevailed. The patient was cutting his grass with a riding lawnmower and struck a pole. The impact caused the lawnmower to fall over, and a bolt struck the patient in his forearm. The patient suffered a pretty serious cut.

Initially, he did not seek care, but a few hours later, he sent the picture of the wound to his wife, who appropriately freaked out and gently suggested he go to the emergency room. So, the patient presented to the E.R., where he was evaluated by an E.R. physician. The E.R. physician was assisted by his nurse. And as part of treating the cut, the doctor needed to clean and sterilize the wound.

Now, this is where things get interesting.

Sitting on the counter was a product called CaviCide. Let me spell that for our audience. That’s c-a-v-i-c-i-d-e. Now, I’ve never heard of CaviCide before, but my understanding is that “cide” generally means to kill, like homicide.

So, what is CaviCide? It’s an industrial cleaner used to clean hard, non-porous services. Like counter-tops, tables, and even operating tables.

In case you have not already guessed it, CaviCide is considered hazardous and is absolutely not for human use – which, of course, is precisely why the physician sprayed it on the patient’s gaping wound. The patient recoiled in pain, and as his arm burned, the nurse continued to spray the wound with the CaviCide, believing they were appropriately cleaning the wound.

As the saying goes: “If some is good, more is better.” Keep spraying. Welcome to America.

The patient’s pain escalated as the doctor sutured the wound. The pain continued after the suturing was finished. After being stitched up, the patient felt the pain was unbearable. He took the bottle of CaviCide to the nursing station and asked if this was an appropriate sterilizing solution. When he learned it was not, he demanded that the sutures be removed. The doctor reopened the wound, cleaned the wound again, this time using the appropriate cleaning solution.

The doctor charted the event as a mistake. The patient left the hospital feeling much better. The physician had given him lidocaine during the re-suturing process. When the lidocaine wore off, the patient experienced more searing pain and presented to the E.R. again, this time at a different hospital’s burn unit.

There was proof of him experiencing, and I’m quoting here, “A hellish, burning pain for 48 hours.” There was also residual scarring. Not surprisingly, the patient sued the E.R. physician and the hospital that originally treated his injury, alleging under no circumstances should CaviCide be used on a human.

The allegation included some critiques about how the CaviCide was stored and how its poor storage made it possible that it could be used inappropriately on a patient. The patient’s E.R. expert believed the error represented absolute gross negligence – not ordinary negligence, but gross negligence.

The patient’s E.R. expert had never heard of a patient having their wound washed out with CaviCide. The hospital admitted that the nurse violated the standard of care. On the other side of the case, the hospital’s own E.R. expert opined the patient didn’t suffer any new injury of pain, and that his symptoms stemmed from the underlying problem, namely the existing laceration.

A second expert explained that CaviCide is not toxic and advanced that it would only cause short-term irritation. It is a pesticide, though, and it seems like you’re looking for a long term solution when using a pesticide.

So, that’s the hospital’s defense in a nutshell. The doctor’s defense was a little bit more nuanced. He denied violating the standard of care, labeling it as an honest mistake. He further argued that the introduction of CaviCide did not harm the patient.

The patient asked for $172,000 in damages, stating he was pursuing a dollar per second for the time he endured intense pain. This is one of the few times I’ve actually seen an account describing why the award for pain and suffering should be precisely the number that it is.

I guess it was calculated from the time the CaviCide was injected into the patient’s wound to the point that he was given lidocaine for the second suturing. Anyway, after deliberating for several hours at the end of a five day trial, the jury found in favor of the defense. That is, the doctor. The jury found that the doctor was an agent of the hospital. And ultimately, the jury said neither the nurse nor the doctor were at fault. And that was it.

So, they get to fight another day.

Mike Sacopulos, JD

I have to say, I’m astonished by that outcome. And I’m a pretty conservative guy and certainly could not be more in the corner of physicians. But when you spray and respray a pesticide into a patient’s wound? It seems like some compensation would result.

Jeff Segal, MD, JD

I think the challenge was that somebody left out CaviCide. That’s the first problem. And I can see how that could happen in an emergency room. The second issue: Know what you’re putting on or into a patient. Surely these things are labeled. And if they’re not labeled, do not use them. It makes no sense to me. We actually got a call from a dentist’s office not too long ago where he was running multiple rooms. He went into one room and there was a syringe with lidocaine present and ready to be used on the patient.

So, the dentist introduced himself and started to numb the patient. But then the tech who had been addressing that room enters and panics. Why? Because the room had actually not been ready. And the syringe being used to numb the patient had just been used on a different patient. And the syringe had yet to be properly sterilized.

The big problem, of course, was that nobody knew the prior patient’s status. Was he HIV positive? What about hepatitis? You’ve got to figure this out. You must track down the first patient and often get his permission to test their blood. Every state treats this definitely, by the way. In some states, you do not have to ask. They just have to do it. In other states, you do have to ask. So, there’s no uniform way to handle this.

We have a list that outlines best practices. I would try to get the patient’s consent upfront. It’s the right thing to do. But the first patient may not want to participate. Meanwhile, the second patient is freaking out, not knowing if the first patient was HIV positive or carrying another blood-borne illness. And if you can’t get this information, do you start treating prophylactically with multiple days of medications?

You see how it goes from bad to worse very quickly. How can you avoid living in this world? Easy. Know what it is you’ve just picked up. This stuff should be labeled. And if it is labeled CaviCide, but you don’t know what CaviCide is, the default assumption should be that it’s not good.

Mike Sacopulos, JD

I recall a similar situation where a hospital brought in some folks to repair an elevator. And the repair people looked around and thought, “We need to put some parts into a solution before we put them back onto the elevator.” So, they grabbed a bucket that previously housed detergent, and they deposited their own (much more potent) degreaser materials into this bucket. As you can imagine, someone else came along not long after and easily mistook the contents of the bucket for actual detergent – because that’s what the container originally housed.

All this happened outside of a designated recycling area. This caused lots of problems, as you might imagine. I’m all for recycling, but there’s definitely good and bad ways to do it. And this all gets back to the point we made previously – make sure things are properly labeled and in the right spots. Don’t let these containers get up and walk.

Jeff Segal, MD, JD

Yes. This is particularly problematic in the era of medications that sound alike. I know there was a case in the not too distant past where someone was handling two medicines sounded very similar to each other, and the wrong medicine was pulled out and infused into the patient. The outcome was horrific. Anyway, I don’t mean to be a Debbie Downer, but let’s move on to the second of the two cases, which was associated with a fairly sizable verdict.

The patient was a 55 year old woman who underwent a cervical spine fusion.

The patient was prone for about five hours during this case and her eyes were taped shut. The tape’s purpose was to keep fluids from the surgery from seeping into her eyes. Following the surgery, the patient lost her vision. She alleged that during the surgery, a solution of ChloraPrep ran into her eyes. ChloraPrep is known to be a potentially blinding agent, and it did indeed blind her. The patient claimed it was the anesthesiologist’s responsibility to prevent ChloraPrep from coming into contact with her eyes.

The patient also asserted that her eyes were not properly taped and observed during the surgery. That said, I don’t know how you could observe the tape during the surgery, with the patient being prone. The argument was that the neurosurgeon should be held responsible, because he was the one using the chemicals that ultimately seeped into the patient’s eyes. Anyway, a $14,000,000 verdict was returned. This is a giant number. The fact that this got to trial surprises me.

But you have multiple defendants. You have the anesthesiologist, you have the hospital, and you have a neurosurgeon. Everybody’s fighting it out and pointing the finger at someone else.

Mike Sacopulos, JD

And that often happens when there are multiple parties involved in the litigation. They begin pointing fingers, and a juror thinks, “Look. I’m not sure which one of these physicians or caregivers made a mistake, but they all seem to agree a mistake was made. And somebody needs to pay for it.”

And that’s a dangerous scenario. When you have multiple parties going before the jury, it’s commonplace. We’ve seen this time and again. Who takes the hit? More often than not, it’s the captain of the ship.

And in this situation, the neurosurgeon wore the captain’s hat.

Jeff Segal, MD, JD

Hang on. It was the anesthesiologist who took the hit, I believe.

Mike Sacopulos, JD

I think that they all took the hit.

Jeff Segal, MD, JD

We’re reviewing the summary of this particular case and the person using the affecting chemicals would have been the neurosurgeon. Well, in the case summary, they’re describing the anesthesiologist as a defendant. So, I’m going to guess anesthesiologist took the hit.

But let’s back up for a second. I think the big question is this: Who is responsible for what in the operating room?

This case’s outcome is more of a cautionary tale of identifying who is responsible for what actions. And typically, protection of the eyeballs during a surgical case, unless you’re operating on the eyeball, is the job of the anesthesiologist. The job of padding all of the pressure points is also the job of the anesthesiologist. The job of making sure there is no pressure neuropathy during a case is also the job of the anesthesiologist.

I’m not saying life is fair. I’m just saying this is the way it breaks down. The anesthesiologist is typically in charge of these jobs, and the anesthesiologist is typically is aware of that – meaning they are mobile during a case. If it looks like the surgeon is leaning on the patient, or putting a lot of weight on the patient, they’ll either bring it up to the surgeon or gently move the patient or surgeon away, just to make sure the patient is not injured or harmed.

But positional neuropathies, ophthalmic injuries – these are the types of things that lie in the domain of the of the anesthesiologist. And when the patient is injured, the plaintiff couldn’t care less who’s writing the check. They just want to make sure that a check gets written.

Mike Sacopulos, JD

That’s right.

Jeff Segal, MD, JD

And this particular case resulted in a $14,000,000 verdict. So, a big check. This is a giant check for most doctors. They’re covered individually for one million, maybe two million dollars.

I don’t know how this will play out. I can’t say whether it will get appealed, or whether this was ultimately filed against a corporate entity. They’d likely have to file against a corporate entity to fully capitalize on the payout. And typically, when you see big verdicts like this, the defendant that just got bitten reacts as follows: “I’m going to appeal this case.” But there’s a chance that by appealing it, you could lose everything.

So, the goal is to try and negotiate this large sum down to a number that is not going to bankrupt your organization or you personally. It’s not a great place to be regardless, because if you’ve lost the original case, you’re negotiating without much leverage. You’re negotiating from a position of weakness. But it’s not as if you have no options. And frequently, the other side wants to see the check. They want to be done, too.

They’re not looking to engage you for another four or five years. If there’s an opportunity to discount the uncertainty and turn it into a certain number, even if it’s a lower number than expected, frequently they’ll play ball.

Mike Sacopulos, JD

I think that’s right. And your time frame isn’t far off. It could take multiple years for this process to resolve itself. And if the verdict is appealed, it may take years to schedule a new trial. In the meantime, both sides have to hire new experts or retain the same experts. It becomes very expensive and delays the ultimate payout by years.

You can imagine patients wanting just to be over with this and arrive at some kind of a compromise. They want to get a check and put it all behind them.

Jeff Segal, MD, JD

If in this case, the anesthesiologist is the one that took the complete hit, I would still make the strongest possible case that the neurosurgeon should always double check. This case didn’t have to turn out this way. It’s in everyone’s best interest to make sure the patient does not have any type of injury afterwards.

It can’t be a positive experience for the neurosurgeon to just say, “Hey, look. I may not have to write a check.” I mean, that’s got to be a gut wrenching experience if the patient is blinded.

So, why not help your brothers and sisters in the O.R. and just double check? Make sure the eyes are taped shut, make sure that no fluids that are toxic can leak into the eye. Make sure that all pressure points are appropriately padded, make sure there’s no likelihood of stretch or compression neuropathy. It’s a belt and suspenders approach, designed to make sure that the patient ends up with a good and positive outcome. So, those are the take home points with today’s podcast.

Thank you so much for joining us. If you have any questions whatsoever about this or other medical legal issues racking your brain, please email us at info@medicaljustice.com.com. Until we meet again.

Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief) and a meritless litigation. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, request a consultation.

Meet Your Hosts

Jeff Segal, MD, JD

Michael Sacopulos, JD

Medical Justice General Counsel

medriskinstitute.com

Michael J. Sacopulos is an attorney who has been educating and advising physicians how to identify and reduce liability risk for more than 20 years. Known for his sharp wit, common sense guidance, and ability to turn mundane legal topics into entertaining educational sessions, Michael speaks nationally on privacy, security, and compliance issues.