This from Massachusetts Lawyers Weekly:
Surgeon switch results in $4.3 million verdict
Published: June 27, 2008
A Suffolk Superior Court jury has returned a $4.3 million medical malpractice verdict against two Brigham & Women’s Hospital surgeons.
The case revolves around an ablation procedure. The plaintiff maintained that, although she had contracted with the chief of the arrhythmia service to do the operation, the procedure was instead performed by a non-board- certified surgeon.
The plaintiff, who now requires use of a pacemaker, prevailed on counts of negligence, lack of conformed consent, and breach of contract, according to an account provided by her attorney, Annette Gonthier-Kiely of Salem.
The full Verdict & Settlement Report submitted by Gonthier-Kiely follows:
The plaintiff contracted with the defendant, chief of the arrhythmia service at Brigham & Women’s Hospital, to perform her AV Nodal Re-entrant Tachycardia ablation. The chief was board-certified in internal medicine, cardiology and electrophysiology and was highly skilled and experienced in performing radiofrequency catheter ablations of AVNRT, a non-life threatening arrhythmia.
The doctor explained that, with a procedure called “mapping”, he could “precisely” target the abnormal cells responsible for the arrhythmia and “selectively” kill only those cells through the use of radiofrequency — high-frequency radio waves that burn heart tissue.
The plaintiff had lived with her condition for more than 20 years and had been medicated successfully with beta blockers for seven years. Her desire to discontinue the medications so that she could have a baby, the virtually zero risk of “needing a pacemaker” as explained by the doctor, as well as the doctor’s agreement to perform the ablation himself compelled the woman to agree to undergo this elective procedure.
The literature clearly establishes that there is a lower rate of complications and a higher rate of success based on the experience and skill of the operator.
The EP study and ablation procedure was scheduled for May 30, 2002. Sometime during the week of May 30, the doctor booked another appointment in conflict with the plaintiff’s scheduled catheter ablation. The doctor failed to notify the plaintiff so that she could reschedule and failed to show up to perform the catheter ablation; rather, on May 30, at about the time the procedure was scheduled to begin, he asked an associate whom the plaintiff had never met to step in and perform the procedure. The associate, who had been educated in Japan and had just completed her electrophysiology fellowship, had no board certifications. The doctor assigned the associate to the surgery without the plaintiff’s knowledge or consent.
The evidence suggested that the plaintiff was already in the procedure room, ready to go and sedated at the time the associate stepped in, and that the associate deviated from the applicable standard of care by failing to stop “burning” in response to clear signs of impending heart block. Had the associate stopped burning in the face of clear signs of injury to the normal conduction, complete and permanent heart block would have been averted.
Of note is that the associate called the doctor after the EP study and reported that the AVNRT diagnosis was confirmed but that there also appeared to be another condition called Inappropriate Sinus Tachycardia. The doctor knew that the plaintiff would require treatment with beta blockers for the second condition. Although he knew that the plaintiff consented to the invasive heart procedure so that she would no longer have to take beta blockers, he failed to direct the associate to stop the procedure, allow the sedation to wear off and address the new development with the plaintiff.
Two weeks later, in addition to suffering complete heart block and undergoing implantation of a permanent pacemaker, the plaintiff was prescribed beta blockers by the doctor for her Inappropriate Sinus Tachycardia; she will require the beta blockers for the rest of her life. The pacemaker, which must work continuously to deliver the normal electrical impulse silenced by the negligently performed ablation, also requires regular monitoring and interrogation.
The plaintiff has already been worked up for “pacemaker-induced cardiomyopathy” by echocardiograms, which have demonstrated an abnormal ejection fraction since the incident.
Defendants contended that the Plaintiff consented to the change of physician and that complete heart block was a risk of the procedure which occurred without negligence on the part of the substitute electrophysiologist.
The jury found against both defendants on negligence and lack of informed consent and found against one of the defendants on breach of contract.
Type of action: Medical Malpractice
Injuries alleged: Complete heart block requiring permanent pacemaker in a 39-year-old wife and mother
Case name: Denyse Richter et al. v. Laurence Epstein, M.D. and Kyoko Soejima, M.D.
Court/case no. Suffolk Superior Court, No. 04-04653A, consolidated with No. 06-2226H
Tried before judge or jury: Jury
Name of judge: Regina L. Quinlan
Amount of verdict: $4,366,000
Date: June 25, 2008
Attorney: Annette Gonthier-Kiely, Annette Gonthier-Kiely & Associates, Salem (for the plaintiff)
August 24, 2009 at 3:17 pm |
I also had an AVNT ablation at BWH, although was not Dr. Epstein’s patient. Fortunately, I did not end up with a pacemaker, but had complications due to a medication error.
I don’t know any of the inside workings of the BWH Arrhythmia Service, but these were my observations as a patient:
1. The informed consent process is pushed to Physician Assistants and Fellows, and it is unclear if these people have proper training in clinical ethics or how to explain a procedure and the risks. For example, the PA who explained the ablation procedure to me gave an explanation that would not make sense to anyone who had passed 7th grade science in Massachusetts, stating, “We run wires from the veins in the groin to all four chambers of the heart.” He later told me after I indicated concern about the risk of a pacemaker, “Pacemakers are not that bad.” Who was he to make that determination for me?
2. The fellows and nursing staff do not understand patient rights. I had refused one of the medications, but the fellow and nurse decided to give it to me anyway, an act which, in the world outside the BWH EP lab, would be considered criminal battery. It was an elective procedure and I should have been given the option to cancel if the medication was required.
3. The attending physicians think it is their decision if there was a “good outcome” from the procedure. My attending even went as far as telling my primary care doctor that my medication error was not a big deal in his opinion, and the fact that I was not happy with the outcome of the procedure meant that I had psychological problems.
So, I think Dr. Giorgberidze has missed the point about why Ms. Richter won her suit. She went to Dr. Epstein because she wanted to get off beta blockers, not because she wanted an AVNRT ablation. Since it was discovered during the EP study that the patient also had IST, a condition that would not be fixed by ablating the AV node, the procedure should have been stopped. But Dr. Epstein lost sight of what the patient wanted, and recommended of what he thought was best, in a paternalistic view of her.
So while many doctors contend that the culprit in rising healthcare costs is litigation, I think that the majority of litigation is caused by doctors not treating their patients with respect and violating their right to proper informed consent using coercion to intimidate patients into going along with their plan.
May 23, 2009 at 4:05 pm |
The old standby.
“if it is not documented it didn’t happen”
October 28, 2008 at 9:16 am |
Dr. Giorgberidze,
With all that was at stake in this case, I am certain that if the switch had been discussed with the patient, it would have come out at the trial.
It may well be that Dr. Epstein felt his substitute was qualified, but in the end, that was not his decision to make,
Nonetheless, as you say, good luck to us all…
October 27, 2008 at 12:48 am |
This is unfortunate but innate risk of catheter ablation for AVNRT about which patients undergoing this procedure are informed routinely. The risk of pacemaker dependency is about 1 to 2% and patient sare also informed about it. Rules at BWH are very strict in this regard.
The fact that Dr. Epstein asked Dr. Soejima to do the case is based on the fact that Dr. Soejima herself is the world’s one of the most prominent and skilled ablators and unfortunately the nature of the complication is such that it can happen in most experienced hands even such as Dr. Soejima’s. I have known both Drs. Epstein and Soejima and Dr. Epstein would not have trusted his patient to a lesser expert than himself. I’m afraid defendants’ lawyers failed to demonstrate this to the 12.
Dr. Soejima’s training in electrophysiology took place entirely at BWH and not in Japan. Although one must say that EP training in Japan as well as most western European countries is superb and in certain aspects even excels training in the US.
Therefore, former Japanese education of yet US-trained electrophysiologist Dr. Soejima has nothing to to with this unfortunate complication that is,again, innate to the procedure.
I’m almost certain that the switch was discussed with the patient and her family, but perhaps was not documented properly…..
OVerall, this case one more time pinpoints the culprit of uncontainable healthcare costs that is malpractive insurance paying for lawyers with dubious competence, and further encourages to practive defensive medicine which by the way is another culprit of increased costs and has nothing to do with innovaitive spirit and risk-taking in exraordinary situations.”
Good luck to all of us…..