Was This Surgicenter Negligent in Granting Privileges?; More

Wayne J. Guglielmo, MA

April 23, 2020

Was This Surgicenter Negligent in Granting Privileges?

The Supreme Court of Missouri overturned a lower court's $2.3 million ruling against a local surgicenter but granted the plaintiffs a new trial after they claimed to have discovered new evidence against the facility, according to a report in Becker's Hospital Review E-Weekly.

In December 2011, Thomas Tharp went to Saint Luke's Surgicenter, in Lee's Summit, Missouri, to have his gallbladder removed. As Tharp and his wife Paula later alleged, in the course of the procedure, his surgeon damaged his "hepatic duct and his common bile duct...causing bile leakage, inflammation, and liver damage."

Although they settled with the surgeon, the Tharps maintained that Saint Luke's was negligent in granting staff privileges to him, since he had managed to keep hidden several medical malpractice suits in his past.

Saint Luke's responded that there was insufficient evidence that it had either breached its duty to the patient or that its actions were the "proximate cause" of Thomas Tharp's injuries.

The circuit court didn't agree, however, and ruled in favor of the plaintiffs, although it granted the defendant's motion that damages be paid out in installments rather than as a lump sum. At this point, the Tharps appealed, arguing that the statutory basis of the circuit court's decision was unconstitutional. The case subsequently made its way to the Supreme Court of Missouri.

Upon its review, the state's high court found that the plaintiffs had failed to make "a submissible case of negligent credentialing" and thus overturned the circuit court decision in their favor.

At the same time, the high court agreed with the Tharps that they had developed sufficient additional evidence about Thomas's surgeon — including that he had low CME scores and that his litigation history had worsened as he aged — to now make a "submissible case" of negligent credentialing. For this reason, said a majority of the justices, a new trial was in order.

Sides Settle in Infant Brain-Injury Case

The case of a New Jersey infant who sustained serious brain injuries during emergency hernia repair surgery has been settled for $6.5 million, reports the New Jersey Law Journal.

In April 2012, Clara Roman was born prematurely at Jersey Shore University Medical Center, in Neptune City, part of Hackensack Meridian Health.

Three months later, Clara's parents, Jodi and Mario Roman, returned to the hospital to have the infant's inguinal hernia repaired. A week after surgery, though, they had to bring Clara back to the hospital, this time to the emergency department, because she had developed a recurrent bulge at the site of the repair. The infant underwent intubation in preparation for an emergency surgery the following morning, August 1, 2012.

In their suit against the defendants — an anesthesiologist and his medical group, Jersey Shore Anesthesiology; the hospital; and Meridian Health — Clara's parents claimed that the specialist and hospital staff were negligent in intubating the infant and in failing to properly monitor her breathing and oxygen levels, thereby causing her brain injury.

In their response, the defendants argued that Clara's injury was not the result of their negligence but rather of a combination of her premature birth and a bacterial infection.

A trial date was set for January 6 of this year, but, following mediation, the two sides recently settled.

The terms of the settlement included $4.5 million in structured payouts, $1.91 million for attorney fees and costs, roughly $1 million for a trust in Clara's name, $250,000 for each of Clara's parents, and approximately $90,000 to satisfy various liens.

Bickering Goes On Over a Law Meant to Help Doctors

A report that was supposed to settle the dispute over venue shopping in Pennsylvania has failed to do so, according to Spotlight PA, an independent news service of the Philadelphia Inquirer.

In 2003, the state's healthcare industry claimed that physicians were fleeing Pennsylvania "in record numbers" because of an unfavorable liability environment. As a general rule, juries in the urban areas of the state, particularly Philadelphia, have tended to be more sympathetic to such suits than those in the state's more conservative rural counties.

To modify or perhaps reverse that trend, the legislature passed a bill that denied plaintiffs the right to select a venue in which a jury might be most sympathetic to their medical malpractice claim.

An appeals court struck down this legislation, ruling that it was "an unconstitutional infringement on the authority of the judicial branch." The Pennsylvania Supreme Court intervened with its own solution: It prohibited venue shopping by altering the rules of civil procedure — that is, the regulations that guide how personal injury and other claims are adjudicated.

This is how things stood until late 2017, when Pittsburgh trial attorney Jason Matzus petitioned the high court to revisit the rule change.

The chair of the Senate Judiciary Committee, Sen. Lisa Baker (R-District 20), introduced a resolution calling for a nonpartisan appraisal of the issue. This was undertaken by Pennsylvania's bipartisan Legislative Finance and Budget Committee. The question for committee investigators was this: What impact, if any, did the issue of venue selection have on the state's liability environment and, more broadly, the supply of physicians?

The investigators hedged their bets on the first part: "The data indicates there were no measurable effects of venue on the availability of physicians across the Commonwealth from the 2003 tort reforms; however, the health care landscape in Pennsylvania has significantly changed for physicians since that time."

On the broader question of physician availability, investigators were equally equivocal, providing ammunition to both sides of the debate: "The available data leads to the conclusion that medical malpractice insurance rates may have an effect on a physician's decision on where to practice," but other factors outside the study's scope — physician compensation, benefits, job location, commute time, and so forth—also "may influence those decisions."

After the report's release, both pro– and anti–rule change advocates claimed a partial victory.

"I think it provides real pause and reasonable doubt for anyone who proposes to change this rule," said Warren Kampf, a senior vice president at the Hospital and Healthsystem Association of Pennsylvania. The trial lawyers countered with their own argument, namely, that the report didn't support the health industry's call for a pause in changing the venue rule.

In the wake of this standoff, plans are in the works to hold public hearings in the spring.

Anesthesiology Residents in the Northeast Are Most Vulnerable to Lawsuits

A new study has found that certain anesthesiology residents may be at higher risk for medical malpractice lawsuits than others in their specialty, as reported last month in Anesthesiology News.

The study was presented at the October 2019 annual meeting of the American Society of Anesthesiologists by a team led by Feel G. Kang, MD, an anesthesiology resident at Brown University, in Providence, Rhode Island. Using the Westlaw database, a subscription-only legal research tool, Kang and his fellow investigators examined all anesthesiology-related malpractice litigation in the United States from 1959 through 2018 and identified a subgroup of 2386 cases involving anesthesiology residents and fellows.

From this subgroup, 288 cases were regarded as being relevant to the study. Of these, 198 cases were excluded for one or more reasons, including lack of direct resident involvement, inaccurate or incomplete data, and duplicate cases. This left 90 cases that met the study's inclusion criteria.

Results showed that residents most likely to be sued for medical malpractice were those in the Northeast who administer general anesthesia. This group accounted for most of the total number of claims (42%), as compared with residents in the Midwest (26%), South (17%), and West (15%).

Among the study's other findings:

  • Junior residents were more commonly involved in malpractice claims than senior residents.

  • Malpractice claims were more likely to involve the intraoperative period of anesthesia training than the preoperative and postoperative periods. The median payout for claims originating from events that occurred during the postoperative period ($7 million) was higher than that for either the preoperative period ($960,000) or the intraoperative period ($910,000).

On the basis of these findings, Kang and his colleagues emphasized "the importance of structured supervision during intraoperative anesthetic management by senior faculty" and that this should be an area of focus for education to prevent litigation.

Other doctors have stressed the importance of teaching residents ― and not just those in anesthesiology ― the importance of good documentation.

"You see again and again in medicolegal cases that documentation lapses often lead to awards rather than dismissals," said Jeffrey C. Gadsden, MD, an associate professor of anesthesiology and the chief of the Division of Orthopaedics, Plastics, and Regional Anesthesiology at Duke University Medical Center, in Durham, North Carolina. "So I think this is an opportunity for us all, but especially trainees, to get into good habits of how to document properly and protect ourselves against claims."

Wayne J. Guglielmo, MA, is an independent journalist based in Mahwah, New Jersey.

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