Case Results
Gordon and Silber Wins Defense Verdict for Trauma Surgeon — Jury Awards $24.5 Million
Against Codefendant Hospital — April 2007.
Type of Case: Medical malpractice. Alleged failure to properly sedate patient and failure to leave
appropriate sedation orders leading to the quadriplegia of a 21 year old college student.
Venue: New York Supreme Court, Kings County.
Background Facts: In this medical malpractice action, our insured physician was alleged to have
been responsible for causing a 21 year old male college student, to suffer anoxic encephalopathy
leading to flaccid quadriplegia, following his presentation to codefendant hospital after a serious
car accident. The plaintiff presented with multiple injuries, including a severe liver laceration
which was causing life threatening hemorrhaging. After the plaintiff was stabilized by the insured,
he was noted to have complete range of motion in all extremities, eliminating the possibility that
the car accident caused the quadriplegia.
Our client made a determination that, rather than an operation to stop the hemorrhaging from the
liver laceration, the plaintiff should undergo an embolization procedure. Following this procedure,
which successfully stopped the bleeding, he was transported to the surgical intensive care unit
("SICU") where our client continued to oversee and administer the plaintiff's care. The doctor then
left the plaintiff in the SICU while he was still under complete sedation, so he could tend to other
trauma patients.
Approximately 45 minutes later, the plaintiff began to wake up from sedation. He began to
become agitated and he started to vomit. The SICU house doctor, without consulting our client
or an anesthesiologist chose to put the plaintiff on a sedative which was ineffective. The plaintiff
then became more agitated, leading to his pushing out his endotracheal tube, aspirating, and
suffering an anoxic episode which lasted 15 minutes.
Plaintiff contended that our client deviated from accepted standards of care by improperly
sedating the patient following the embolization procedure, and by leaving the SICU to attend to
a different trauma patient without leaving any orders concerning the sedation of the plaintiff.
Special Problems: The assured was the physician responsible for the care of the patient and was
the only remaining defendant at trial, since the codefendant hospital previously settled out of the
case. Adding to this was the surprise testimony of two nurses who contradicted the insured's
testimony that he returned with the plaintiff to the SICU after the embolization procedure.
Another "problem" with this case was the enormous sympathy factor. The plaintiff was a
promising college student athlete with a 49 year work life expectancy. He was the Valedictorian
of his High School class - the jury was shown his speech on video. After the anoxic event, he had
tremendous difficulties with speech and was bound to a wheelchair, and requires a home-health
aide 24 hours a day.
Our Strategy: Our primary defense was that it would have been inappropriate for our client to
have given orders regarding sedation in advance of the patient waking up, since his injuries,
especially to his liver, would have made the metabolization rate of the medication impossible to
predict. In fact, we obtained a concession from plaintiff's expert that it would be preferable to
have the doctor who was present when the patient woke, make decisions concerning further
sedation. We also got plaintiff's expert to concede that the plaintiff was adequately sedated upon
arriving at the SICU, and for at least an additional 45 minutes. Our expert anesthesiologist also
testified that giving advance instructions with regard to sedation is risky, given that the wrong form
of anesthesia or the wrong amount could have disastrous effects.
With respect to whether the doctor returned with the patient to the SICU, we were able to get one
nurse to concede she could not recall if any of the attending doctors had returned to the SICU,
and obtained a concession from the other nurse that she resented the insured's criticism of the
failures that took place in the SICU after our client was called away. This allowed us to argue that
the nurses were not credible with respect to this issue. Also, we argued that the insured's
decision-making and treatment in the first hours after the plaintiff's initial presentation saved his
life from his injuries due to the car accident.
Result: After a 24-hour deliberation, the jury found in favor of our client, rejecting the plaintiff's
contentions that he had deviated by failing to make sure the plaintiff was adequately sedated, and
by not leaving orders for the plaintiff's sedation when he was called away to handle another
trauma patient.
The jury found that the hospital had deviated by administering the wrong anesthesia, and by
failing to call an anesthesiologist when the plaintiff began to vomit. With respect to damages,
although the hospital had previously settled for $3.75 million, the jury calculated plaintiff's
damages against the hospital, as $5 million for past pain and suffering, $12.5 million for future
pain and suffering, and approximately $7 million for past and future health costs and future
earnings.
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