Episode 035: Fear Factor

Speaker 1: You are listening to Your Practice Made Perfect; support, protection, and advice for practicing medical professionals, brought to you by SVMIC.

Brian: Hello and welcome to this week's episode of our podcast. My name is Brian Fortenberry, and this week we're going to be talking about a closed claim, and we have an expert here that's going to help us walk through this one and have some discussions. It's going to be really interesting. Welcome, attorney Jamie Wyatt. Jamie, thanks for being here.

Jamie: Thank you.

Brian: Before we jump in and get started and talk about this case, tell us a little about yourself, your experience and your time here at SVMIC.

Jamie: Okay, well I've been at SVMIC almost 10 years now, as a senior claims attorney. I got my B.A. at Temple University in English Literature, and then I went and got a J.D. at Widener University. After that, I went on to be a JAG attorney in the United States Navy. I had some claims experience in that in the federal tort claims, and then I came on to Tennessee, moved here, worked at the legislature for a while before joining everyone here at SVMIC in the claims department.

Brian: That sounds fascinating. I didn't know you had worked as a JAG attorney. We'll have to have another talk at some time about being a JAG attorney because that's really neat. Before we get into talking about the specifics of the case, and getting into our discussion, Jamie, I want to kind of give our listeners a background of what we're going to be talking about today.

And this case involves a 40-year-old male who was diagnosed with an isolated atrial septal defect, and underwent heart surgery utilizing bypass. Following the surgery, the patient began showing signs of right-sided hemiparesis and mental changes. Tests performed after the surgery revealed strokes involving the bilateral hemispheres. Injuries included mild cognitive and physical injuries attributed to hypoxia during the surgery. The patient sued the anesthesiologist, CRNA, perfusionist, and the facility. The surgeon who had an established relationship with the patient was not a named party in the lawsuit. Allegations included, but were not limited to, the perfusionist's failure to keep the blood pressure within the appropriate parameters during the time the patient was on bypass, resulting in the patient suffering bilateral stroke and neurologic injuries.

Aside from the actual treatment issues, which produce their own challenges in the defense of this case, the defensibility of the case was complicated by a number of peripheral issues. One of the most profound issues affecting defensibility involved the dynamic created by the surgeon who was not a part of the suit. Ironically, the surgeon imposed a practice in her operating room that inhibited effective communication.

In discovery, it became clear that the surgeon had a no talking policy in the operating room. She prohibited anyone in the operating room from speaking except herself. Also, due to the tense environment she created and also her anger issues, the operating room staff was afraid of her. The surgeon denied a no talking policy during her deposition, but indicated she did not like frivolous talking. The defendants who all testified that the surgeon would not tolerate speaking in the operating room contradicted this testimony.

Testimony from the perfusionist indicated that although she was concerned about the near infrared spectroscopy monitoring values in the operating room, she did not say anything because of the surgeon's disposition. She testified that communication with the surgeon was difficult, and that she was much more comfortable with other surgeons. This deposition alone made the defense of the case challenging.

Compound this testimony with the numerous co-defendant providers who also testified that the surgeon screamed at them in prior cases, intimidated them, and established a hostile environment not conducive to communication, and you have a case that adds a mad factor for any jury with the possibility of a very high jury verdict against all of the defendants.

Jamie, this is quite interesting here, that we have a surgeon that has this kind of, not only disposition but this kind of "policy" in the OR and then not only that the fear factor of some of those participating in the procedures. How did the surgeon though escape being named in this suit despite all of that?

Jamie: From my understanding, she had a long relationship with the family. She had a really good bedside manner, and was well liked by her patients. So somehow that prevented her from being brought into the suit.

Brian: So, it was that bedside manner, that prior relationship, ironically it seems it's the communication with the patients and not the staff that kept her from getting sued in this situation. Can you elaborate on this no talking policy that was implemented, how it created this adverse outcome? I think as we kind of look at it, you can kind of read between the lines, but from your perspective, what did that involve?

Jamie: Well, I think we can all agree that communication is paramount when you're performing a procedure with a number of participants like in this case. It's an easy argument to make that having a no talking policy rises to the level of a breach in care as communication is key in this situation.

Here, the surgeon, she never testified that she had a no talking policy. She just prohibited frivolous talk, but according to everybody who participated in surgeries with her, it was clear that she did not like anyone to speak, only herself. She had a reputation of having anger issues, conflicts with coworkers, and from my understanding it was very obvious that she was willing to go to some great lengths to ensure that she was heard and she was heard alone in that she was the only one that was able to communicate. She did not foster communication in the OR.

Brian: The interesting part of that, as I read this, those are relationships that you build with your colleagues. That was the detriment here because it seems like once you get into that he-said-she said and it's a he-said-she said within the healthcare team itself going, "Well, there was this policy" and then you have these multiple other people going, "Yes, this policy existed of no talking" and the physician saying, "That's simply not the case," and you get that finger-pointing within. Generally, that doesn't turn out well for cases, wouldn't you agree?

Jamie: Yes, I mean in this case the perfusionist in his deposition had stated that they saw the values going down and they did absolutely nothing because of the fear of speaking up during the case. Obviously that's going to lead to an adverse outcome, and in this case that's exactly what happened, so they were brought into the suit as well.

Brian: That's interesting, that as a medical professional and the perfusionist, that you see it happening but the fear of speaking up, that's definitely concerning. So, was this tried before a jury, or because of the circumstances, did it just have to be settled?

Jamie: Because of the circumstances, it was definitely a case that we wanted to settle if we could. The contrary conflicting testimony by the co-defendants and any kind of possibility of finger-pointing is always problematic among co-defendants in that it tends to drive the value of any case up. You know, it's going to hurt all the parties involved, and it could potentially cause a mad factor for a jury if we were to take it to trial.

Brian: And I imagine you get in front of a jury too, and you start getting conflicting stuff like that, the amount of money involved in that case may go well above and beyond what you had anticipated as well.

Jamie: Yes, it would definitely go above what a normal value may be placed on the case.

Brian: As we have listeners that are listening to this, and wanting to grasp from this, what are some things that I could do as a physician, as a practicing doctor, takeaways that could keep me out of one of these situations, one of the ones that would jump off the page at me, is you might want to not be so difficult to work with. What are some other things that, if there are some, that are takeaways that you have, that the physicians might be able to do?

Jamie: I mean, I think as you're saying, the obvious, communication, never have a no talking policy in the OR or in any circumstance, fostering an environment that encourages open communication, just will allow everyone to feel like they can be heard and will likely prevent an adverse outcome. Failure to speak up as a participant in this circumstance, the other co-defendants failing to say anything when this was going on, resulted in their involvement in the suit, and a bad outcome as well.

Brian: And I think one of those things is for a physician out there, if you're involved in a case like that, and you see things starting to go south, and even though your fear is maybe for someone else there, or you're intimidated by someone, it's definitely a situation you need to speak up regardless of what the policy is. You probably better say something for the benefit of the patient, right?

Jamie: Right, and I would even go so far to say that it's necessary to put the facility on notice, that you're working in an environment where you don't feel comfortable enough to communicate with someone that is participating in a circumstances such as this in the OR. I would think any risk manager or risk management department would want to know that because failure to address a situation like this certainly causes exposure to liability, and really affects patient welfare.

Brian: And you have to think this is probably, even though it grew to this level, probably not an isolated incident. I mean, it's hard to believe that this is the first time that there was ever an issue between this particular physician and the surgical team. As you stated, speaking up and letting someone know and putting it in the court of the facility themselves, then they have an obligation to address this.

Jamie: Absolutely.

Brian: Thank you so much for spending time with us today and discussing this very interesting case, and I'm certain that our listeners are going to get some really good information out of this. Thanks for joining us, Jamie.

Jamie: Sure, thank you.

Jamie: You're welcome, Brian.

Speaker 1: Thank you for listening to this episode of Your Practice Made Perfect with your host Brian Fortenberry. Listen to more episodes, subscribe to the podcast, and find show notes at SVMIC.com/podcast. The contents of this podcast are intended for informational purposes only and do not constitute legal advice. Policyholders are urged to consult with their personal attorney for legal advice as specific legal requirements may vary from state-to-state and change over time. All names in the case have been changed to protect privacy.