Seventeen months after undergoing unsuccessful back fusion surgery, a Utah man underwent a repeat procedure, performed by the defendant surgeon. The patient alleged that a surgical technician removed a Hemovac® drain from the incision site as the surgical drapes were removed following the procedure. The drain was allegedly not replaced before the patient was taken to the recovery area.
He complained of numbness and inability to move his legs. The surgeon was notified and advised the hospital staff to continue monitoring the patient. When the problems persisted, he was returned to surgery. The surgeon found a large hematoma and removed several hundred cc’s of blood.
Since then, the patient has had continuing problems despite treatment with steroids and physical therapy, and following a 10-month stay in a skilled nursing facility. The patient is essentially paralyzed from the waist down and confined for the most part to a wheelchair.
The plaintiff alleged that he was not a suitable candidate for the second back fusion in light of his previous unsuccessful surgery. The plaintiff also claimed that removal of the drain allowed the hematoma to develop, causing compression and damage to the spinal nerves.
OUTCOME
According to a published account, a confidential settlement was reached with the hospital. Claims against the surgeon and a PA were pending.
COMMENT
It is important for every member of the surgical team to know the number and location of surgical drains and to monitor drainage output. Here, removal of a drain resulted in the formation of a large hematoma, which caused compressive damage to the spinal nerves.
We don’t know when the patient developed symptoms or how soon he was reevaluated by the surgical team. We do know there was a delay between the patient’s first report of symptoms and the operation to evacuate the hematoma.
The legal case names the hospital, the physician, and a PA as defendants. The hospital has liability for the actions of the surgical technician, provided this employee is generally operating within the scope of his or her employment.
The confidential settlement with the hospital permits the plaintiff to recover against the hospital for the technician’s removal of the drain, while pursuing different claims against the surgeon and the PA. Presumptively, these breaches in the standard of care against the clinicians would be a failure to supervise the clinical staff, failure to anchor the drain (perhaps), failure to adequately monitor the patient postoperatively, and failure to act on the patient’s deteriorating status in a timely fashion.
Under the best circumstances, jurors expect surgeons to make a personal appearance shortly after surgery. In the case of complications, jurors expect an immediate and reassuring presence. It may be impossible for the surgeon to visit the patient’s bedside immediately—making communication between the surgical team and the surgical nursing staff imperative.
Essentially, this patient has lost the use of his legs and is wheelchair dependent, making substantial damages possible. The case will turn on whether the jurors believe the surgeon and the PA were adequately responsive to the patient’s condition. They will likely consider factors such as the time interval between the patient’s first complaint and the operation to evacuate the hematoma, and the communication between the surgical team and the surgical nurses, to determine whether the clinicians were appropriately responsive. In sum, surgical clinicians should have well-oiled mechanisms in place to manage low-risk, expected complications, and to investigate atypical or serious complications quickly and personally. —DML
Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.