$4,950,527 – Medical Malpractice/Negligence
Facts
Kaiser healthcare providers failed to recognize a dislodged endotracheal tube, leading to an anoxic brain injury in a 17-year-old stabbing victim.
17-year-old RP, a Kaiser member through his grandfather’s plan, was the victim of multiple stab wounds while at a trolley stop. He survived the attack, was stabilized at UCSD Medical Center, and was on his way to a full recovery. Following surgeries, he had difficulty being weaned from the ventilator. He developed agitation when sedation was weaned and failed multiple CPAP trials.
RP was finally extubated at UCSD. During that time, he was able to speak with his mother, answer her questions, and follow instructions. Although he remained extubated for a few hours, he had to be reintubated secondary to tachypnea, increased work of breathing, and respiratory failure. While intubated RP remained sedated on propofol and showed signs of agitation when sedation was weaned. No one ever expressed any concerns to the family about RP’s neurological status while at UCSD and no neurology consultation was requested. Once Ray was stable, Kaiser insisted that he be transferred to one of its facilities.
Upon arrival at Kaiser Zion, his wrist restraints, utilized because of his bouts of agitation while intubated, were maintained and he was kept on the Propofol drip for sedation. Dr. Ziolo, an intensivist, examined RP the next day, and was concerned about his persistent fever, which she thought might be in reaction to the Propofol. She wrote an order to wean the Propofol and start RP on Versed.
As the evening wore on, RP started to become more alert and agitated. Despite receiving Versed at the maximum drip and a Fentanyl drip, RP was still waking up intermittently and trying to pull out his endotracheal tube. He had several recorded episodes of agitation the night of May 20th and the early morning hours of May 21st. Nurse Munoz reviewed the restraint orders at 0700 and noted that they were warranted because RP was “pulling lines, pulling tubes, removal of equipment, climbing out of bed.”
At 0730 on May 21st, the nursing staff changed shift and Nurse Jon Concepcion was assigned as RP’s day nurse. Nurse Concepcion had no experience with a patient like RP. According to Nurse Munoz, she expressed concern to Nurse Concepcion that RP’s ventilator tube would get disconnected.
The episodes of agitation continued to worsen during the morning hours. Cardiologist William Keen, M.D., came to evaluate RP’s heart and pericardial condition shortly after 1000. He did a bedside echo ultrasound which confirmed that RP’s pericardial effusion was stable with no change and no tamponade.
At some point within this time frame, general surgeon Bradley Bartos, M.D., also came in to evaluate RP and was present during the bedside echo. Although Dr. Bartos first testified he did not get the impression RP was pulling at his tubes, this was contradicted by his note.
While the Code sheet is vague, incomplete and unclear, it appears from piecing together testimony that somewhere between 1041 and 1045, the ventilator alarms sounded from RP’s ventilator showing low tidal volume. Upon assessment of the tube, Mr. Ibanez noted that the tube itself was leaking. He saw the tube was no longer properly in place and starting to fall out.
Nurse Hoffman noted that RP’s O2 sats were declining and his color was not good. Dr. Keen entered the room, and checked RP’s heart again with the portable ultrasound, and noted the heart was barely moving, and that RP had no pulse.
Code Blue was called. Dr. Drew reintubated the patient at 1050.
During the code, RP went between pulseless electrical activity and asystole. RP had no pulse or blood pressure from the time of the initial ultrasound until his heart rate returned. The first rhythm strip that shows a pulse at the conclusion of the code is at 1103.
Allegations/Contentions
The facts clearly demonstrate, and claimant’s experts testified, that the events leading up to the disconnected endotracheal tube were predictable and preventable, that the extubation and subsequent cardiopulmonary arrest were poorly handled, and that Kaiser’s physicians and nurses were negligent in their care and treatment of RP, which resulted in his permanent brain injury.
Kaiser alleged that prospectively, the outcome was not foreseeable and therefore the defendants were not negligent. They claimed that in order to aid RP coming off the ventilator, the level of agitation he exhibited was expected and acceptable. Kaiser also contended that RP “possibly” had sustained brain damage as a result of the underlying stabbing event, and suggested that he was unusually susceptible because of his overall physical state, and the pericardial effusion.
Injuries/Damages
RP suffered an anoxic brain injury, one he did not have as a result of the initial altercation which landed him at UCSD and ultimately at Kaiser. He can only read at a second-grade level. He is learning to walk with a walker, requires assistance with his activities of daily living, and needs round-the-clock supervision and care to keep him safe. He will never be able to hold a job and will never live independently.
Interim Arbitration Award
At the conclusion of the arbitration, counsel agreed that the Arbitrator may issue an ‘interim’ award if he found in favor of claimant to provide the respondents an opportunity to move for periodic payments pursuant to MICRA if they so elected. On July 19, 2013, issued his Interim Award in Claimant’s favor for non-economic damages of $250,000, loss of earning capacity (present value) of $587,907, and future life care costs (present value) of $3,675,000 – for a total award of $4,512,907. In addition, the arbitrator ordered that Kaiser shall continue to pay all expenses incurred in RP’s stay at the rehabilitation facility for as long as his attending physicians determine his confinement there is medically necessary, as well as ordering that Kaiser continue to pay rent for a house adjacent to the facility for RP’s mother. Respondent moved for reconsideration on the issues of liability, causation, and damages. Claimant opposed the motion, and also moved for the arbitrator to award monetary damages rather than declaratory relief for the future medical expenses related to RP’s stay at the rehabilitation facility.
Final Arbitration Award
After a hearing on Kaiser’s motion for reconsideration, the Arbitrator upheld the findings on both liability and causation. He upheld his future care needs but adjusted them to reflect another year at the rehabilitation center. Therefore, he attended the cost of one year at the rehab facility but subtracted out any items he viewed as double recovery while RP remained at the nursing center. The final award included non-economic damages of $250,000, loss of earning capacity (present value) of $587,907, future life care costs (present value) of $3,524,688, an additional year at Casa Colina Rehabilitation Center of $569,932, and rent for RP’s mother’s home at Casa Colina for an additional year of $18,000 – for a total award of $4,950,527.
Special Notes
Shortly before the Arbitration Hearing was scheduled to begin, claimant served a Statutory Offer to Compromise on the Kaiser entities, in the amount of $7,500,000. The offer was not accepted, and no counteroffer was made. Kaiser’s counsel asked the arbitrator for a defense award.
