Episode 126: Juries Get Good Medicine

Speaker 1:

You're listening to Your Practice Made Perfect, support protection, and advice for practicing medical professionals brought to you by SVMIC.

J. Baugh:

Hello everyone. And welcome to this episode of Your Practice Made Perfect. My name is J. Baugh and I'll be your host for today's episode. Today we're going to cover a closed claim and we're calling this episode, jury's get good medicine and to help us discuss the facts of this closed claim is Stephanie Deupree. Stephanie, welcome to the show.

Stephanie Deupree:

Thank you, J.

J. Baugh:

Before we get started talking about this closed claim, Stephanie, can you share with us a brief introduction about yourself?

Stephanie Deupree:

I'll be glad to. As J. said, my name is Stephanie Deupree and I am a senior claims attorney with SVMIC. I've been with the company almost 12 years. Prior to coming to SVMIC I worked as a medical malpractice defense attorney with a local firm.

J. Baugh:

Well, Stephanie, thanks for joining us today for the discussion of this closed claim. Today, we're going to discuss a case involving a robotic Nissen and fundoplication surgery with hiatal hernia repair. Stephanie, why don't we start off with an introduction of the patient, the physician, and a bit of information about how all this began.

Stephanie Deupree:

Sure, J. The patient, Martha May Randolph was an active 74 year old female with a history of esophageal stricture, GERD, and hiatal hernia. She presented to the office of general surgeon, Dr. Cameron Smith. Approximately one year earlier, Dr. Smith had performed a robotic Nissen fundoplication with hiatal hernia repair. Although Mrs. Randolph initially reported relief from her symptoms related to the GERD and hiatal hernia after her surgery over the last few months, her symptoms had returned and more recently worsened, hence her return to his office.

J. Baugh:

Yes, and I think it's important to note specifically that Mrs. Randolph had developed dysphasia, regurgitation, and odynophagia. These symptoms were increasing in frequency and severity. Eating had become very difficult and when she was able to eat Mrs. Randolph experienced early satiety and nausea. All these issues led to unwanted and unneeded weight loss of 25 pounds within three months.

Stephanie Deupree:

Yes, J, definitely an important point. So Dr. Smith ordered a battery of tests, including a barium swallow and endoscopy. The test revealed esophagitis and a large recurrent paraesophageal hernia. Following the test Mrs. Randolph returned to see Dr. Smith. At that visit Dr. Smith explained to Mrs. Randolph that she needed a revision surgery. Dr. Smith advised that he only performed this type of revision surgery with an open approach. Mrs. Randolph did not want an open procedure and expressed her desire for minimally invasive surgery. Due to Mrs. Randolph's strong preference for minimally invasive surgery. Dr. Smith referred her to Dr. David Cowen, a board certified thoracic surgeon at a large metropolitan medical center known for his expertise with laparoscopic and robotic surgery.

J. Baugh:

So now we have a second physician involved and within a few weeks, Mrs. Randolph had an appointment with Dr. Cowen. During the appointment with Mrs. Randolph, Dr. Cowen reviewed her symptoms along with the available diagnostic testing results. Dr. Cowen concluded that the patient needed surgery, but before scheduling revision surgery, he ordered a gastric emptying study and cardiac clearance.

Stephanie Deupree:

Once these items were satisfactorily completed and revealed no problems, Mrs. Randolph accompanied by her husband returned to see Dr. Cowen. During this visit, Dr. Cowen explained to Mrs. Randolph that she was a candidate for laparoscopic revision surgery. He explained to Mrs. Randolph and her husband, the difficulty of revision surgery illustrating the anatomy and how he hoped to repair it. In addition, he gave handouts pertaining to hernias and the laparoscopic procedure. They had a lengthy discussion about the risk, benefits and alternatives to surgery.

J. Baugh:

In addition to the lengthy discussion, Dr. Cowen also advised the Randolph's of potential complications, including damage to other organs, prolonged disability, and the risk of death. Nonetheless, Mrs. Randolph wanted to proceed with surgery. Dr. Cowen documented the informed consent process in great detail. And Mrs. Randolph was scheduled for surgery in one week. The morning of surgery, Dr. Cowen saw and examined Mrs. Randolph once again. She was given the opportunity to ask questions, but declined. After the examination and discussion, Mrs. Randolph signed a detailed consent form for the surgery, which outlined the significant risks and potential complications of the procedure, including organ damage and death.

Stephanie Deupree:

So needless to say, this is a complicated surgery. During the surgery, Dr. Cowen encountered significant scarring and severe fibrosis. While carefully dissecting to the esophagus, he faced significant fibrosis and unusually distorted anatomy all the way. When he reached the esophagus, just under the pericardium, Dr. Cowen saw brisk bleeding coming from the hiatus. Believing there was a posterior heart injury, he immediately called for a stat cardiac surgery consultation.

J. Baugh:

So now Dr. Cowen did a quick laparotomy and placed his hand in the hiatus. Resuscitation efforts were initiated. Blood products were administered and the cardiac surgeon arrived within a few minutes. Upon arrival the cardiac surgeon performed a median sternotomy, which revealed an injury to the left atrium and pericardial tamponade. Despite the cardiac surgeon's efforts to repair the cardiac injury and the resuscitation efforts of the entire surgical team, Mrs. Randolph expired on the operating table. Dr. Cowen met with the Randolph family immediately after the surgery to explain what had happened and to offer his condolences.

Stephanie Deupree:

Following Mrs. Randolph's death, her family decided to sue Dr. Cowen and his practice group. Years of litigation eventually led to a four day jury trial. At trial, the Randolph's were able to paint a very sympathetic picture of a lady, much loved by her family and community. Prior to her death, Mrs. Randolph was still working part-time and was very involved in the lives of her children and grandchildren. Dr. Cowen's defense team never disputed any of this or maligned Mrs. Randolph in any way. In fact, the defense agreed that Mrs. Randolph was a lovely person by all accounts and her death was a sad, unfortunate event.

J. Baugh:

Yes, it is a very sad and unfortunate event Stephanie. I agree with that. As there was no question as to the cause of Mrs. Randolph's injury and death, when it was time for the defense team to present their proof, they focused on the standard of care. First, Dr. Cowen testified in his own defense going through his informed consent discussion and process. He also testified about the surgery with the use of anatomical exhibits to help the jury understand what he saw and did. Dr. Cowen's testimony showed him to be a caring and conscientious physician who had grieved the unfortunate loss of his patient, whom he had been trying to help.

Stephanie Deupree:

Second, two fully supportive medical experts testified at trial that Dr. Cowen complied with the standard of care throughout his treatment. The experts were able to explain to the jury, the complexity of the surgery and how the injury could occur in the absence of any negligence. Their ability to walk the jury through the science and evidence was markedly different from the plaintiff's expert, who struggled to articulate his opinions in a clear and concise manner. At the conclusion of the trial, the medical proof as presented by Dr. Cowen and the defense experts along with Dr. Cowen's well-documented informed consent process carried the day. The jury returned a defense verdict, despite the very sympathetic nature of the case. Taking the time to document every step of the way through treatment ultimately helped Dr. Cowen prevail. The defense was able to show the jury, all of Dr. Cowen's documentation, including office notes, history and physical note, operative report and consent form.

J. Baugh:

And Stephanie it's just so important to really highlight that these documents showed not only that Mrs. Randolph had been fully apprised of the significant risks associated with the surgery, but also that she understood and willingly chose to proceed with the surgery, knowing the possible outcomes. Certainly Dr. Cowen and everyone involved would've preferred a very different outcome. This case illustrates the importance of providing and documenting thorough informed consent, especially in the event of a bad outcome. So Stephanie, as we're getting ready to wrap up this episode, do you have any last minute tips that you'd like to share with our listeners?

Stephanie Deupree:

Yes, J. I would. I'd like to speak to informed consent for just a moment. I cannot over emphasize the importance of good informed consent. These can be difficult conversations, especially when complex or high risk procedures are involved. Take the time on the front end, especially when it's a planned or elective procedure. Don't wait until the day of surgery. Look to Dr. Cowen as an example of communicating and documenting throughout the entire process. Don't forget the documentation should be part of the informed consent process.

Stephanie Deupree:

Although informed consent can occur in the absence of documentation, it makes it a much harder case to defend. Ideally, the provider should have a detailed note and a signed consent form that outlines the risk and benefits, alternatives, and potential complications. Notice that I said to include potential risk and complications. Sometimes we see that physicians have informed a patient of a potential risk such as injury to an organ, but they have not explained the possible impact and outcome associated with that risk. Communication is key. Use layman terminology as much as possible. If you have a medically sophisticated patient, then you can tailor your conversation accordingly. Be sure to not only take the time to explain and educate, but also give your patient time and opportunity to ask questions.

J. Baugh:

Well, I agree with you, Stephanie, for these lessons that we've learned from these tips that you've provided. And I want to thank our listeners for joining our discussion of this closed claim. And once again, thanks to you, Stephanie, for being with us today.

Stephanie Deupree:

Thank you, J.

Speaker 1:

Thank you for listening to this episode of Your Practice Made Perfect. 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. Policy holders 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.