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NY Medical Malpractice – Respiratory Distress During Surgery Causes Permanent Injuries


The 44 year-old male plaintiff was undergoing a surgical repair of a ruptured Achilles tendon. The procedure was being performed under regional anesthesia, specifically by epidural with conscious sedation. It was alleged that approximately 90 minutes into the procedure the plaintiff’s vital signs significantly changed. Specifically, his heart rate had dropped, his blood pressure had decreased, and his oxygen saturation level went from 99% to 59% over the course of several minutes. It was alleged that these changes were caused by respiratory insufficiency that was being experienced by the plaintiff, who was in a prone position for the subject procedure, and that the defendant anesthesiologist negligently failed to monitor the patient and appreciate distress. The declining oxygen saturation rates resulted in the plaintiff suffering respiratory arrest. The plaintiff contended that he suffered brain damage that has left him with permanent and very significant difficulties with short-term memory and communication skills. The plaintiff, who had worked as a CFO for health care system, maintained that he is permanently unemployable.

The evidence disclosed that the plaintiff had undergone a prior attempted Achilles tendon repair under general anesthesia. This prior repair attempt failed, and because the plaintiff found the general anesthesia difficult to tolerate, he opted for regional anesthetic by epidural with conscious sedation. The plaintiff also maintained that as a large individual, the plaintiff was at an increased risk of a hypoxic insult when he was in the prone position, and that the risk was additionally heightened by the plaintiff’s history of sleep apnea.

An oxygen-measuring valve had been placed on the plaintiff’s finger. The defendant anesthesiologist contended that he properly monitored the patient and maintained that he reasonably believed that the changing signs were merely indicative of the “motion artifact” which occurred because the plaintiff’s hand had been moving during the procedure. The defendant also contended that the plaintiff may well have experienced a central neuraxial blockade, which is a phenomenon that occurs with epidural anesthesia on rare occasions and which can cause cardiac arrest for unknown reasons.

The plaintiff countered that the plaintiff had been wearing the device on his finger during the entire 90 minute procedure and that the vital signs had decreased dramatically on only one occasion, denying that the defendant’s position should be accepted. The plaintiff would have also argued that since the arrest occurred after the vital signs had been depressed for approximately five minutes, the defendant’s position as to this rare complication should be rejected.

The plaintiff further further maintained that shortly before he suffered respiratory difficulties, the defendant anesthesiologist, with whom he had met prior to the procedure, had been replaced with an associate. The plaintiff elicited testimony during the deposition testimony of this associate that he may have been arranging his instruments at the time the vital signs changed. The plaintiff maintained that this factor lent additional support to the plaintiff’s position that adequate monitoring had not been provided. The plaintiff also contended that although the anesthesiologist with whom he met was an attending physician, that he was advised that the informed consent form so reflected and maintained that the hospital should be vicariously liable on an apparent agency theory.

The plaintiff maintained that when he suffered the respiratory arrest, a code was called and that although the plaintiff was revived, he sustained anoxic encephalopathy with significant injury to the brain, resulting in the plaintiff being comatose for nine days and spending the next seven months in various rehabilitation facilities. The plaintiff contended that he has very limited short-term memory and has great difficulties interacting with his wife and children, remembering people that he recently met, and assistance with the activities of daily living.

The plaintiff also maintained that it was ultimately deemed to be permanently disabled due to his continued significant deficits in short-term memory and language/communication skills and the plaintiff would have pursued very significant future income claims. The plaintiff’s wife has been appointed his legal guardian.

The case settled prior to trial for $1,900,000 and a waiver of the $800,000 medical lien.

Plaintiff’s anesthesiologist: Sheldon Deluty from Englewood, New Jersey; Plaintiff’s physiatrist: Caroline McCagg from New Brunswick, New Jersey; Plaintiff’s life care plan expert: Jane Mattson, R.N. from Stanford, Connecticut and Plaintiff’s economist: M. Marcus from Scotch Plains, New Jersey.
T.H., August, 2006.
Attorney for plaintiff: Charles A. Cerussi of Law Offices of Charles A. Cerussi of Red Bank, New Jersey and Manhattan.

The defendant anesthesiologist had taken the position in discovery that the brain injury probably was the result of a rare, but recognized, complication of epidural anesthesia known as a central neuraxial blockade, which can cause cardiac arrest for unknown reasons. The defendant argued that the depression of the vital signs during the several minute period preceding the arrest was merely a motion artifact that occurred because the hand on which the oxygen measuring valve was attached was moving during the procedure. The plaintiff would have undermined the defendant’s arguments regarding such a potential motion artifact by arguing that the jury should consider that the valve was on his finger during the entire 90 minute procedure and that the only time the vital signs became depressed was immediately before the respiratory arrest. Additionally, the plaintiff argued that in view of the sudden drop in vital signs, it was clear that the cause of the code was the failure of the physician to adequately monitor the patient and not some very rare complication of epidural anesthesia. In this regard, the plaintiff would have further undermined the defendant’s case by emphasizing that the drop in vital signs occurred at about the same time the second anesthesiologist took over the case. The plaintiff would have stressed that his physician’s deposition testimony reflected that he may have been arranging his instruments at the time the vital signs changed, arguing that his lent additional support to the plaintiff’s position that inadequate monitoring of the patient caused the injury.

The plaintiff was employed as a CFO by the co-defendant hospital, which asserted an $800,000 medical lien. The plaintiff named this hospital as a defendant on an apparent agency theory, arguing that since the first anesthesiologist was introduced to him as the hospital’s Chief of Anesthesiology, and since the informed consent form reflected that the anesthesiology would be provided by the hospital, such apparent agency existed. The plaintiff stressed that his job duties were concentrated in a different division of the hospital. It should be noted that in settlement, the hospital waived its entire medical lien of $800,000. It should be further noted the remainder of the recovery was paid on behalf of the second defendant anesthesiologist who took over from the first physician shortly before the drop in vital signs. Finally, this defendant physician had a $2,000,000 MIXX policy. The plaintiff had rejected a $1,000,000 offer, which was made in summer of 2005 and during a period in which this carrier with solvency issues universally refused to make an offer in excess of $1,000,000. The plaintiff had rejected this offer and this aspect settled shortly before trial in August 2006.