This from Massachusetts Lawyers Weekly: http://www.masslawyersweekly.com/index.cfm/archive/view/id/443928#
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.This case has roused the interest of a powerful Chicago law firm for medical malfeasance, this is far from over.
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)
Collateral Damage: A Patient, a New Procedure and the Learning Curve 
Mr. Walters. I put up an excerpt from your story up on my blog. I also have a couple of links back to this web site on there. I just saw that this is all copyrighted. Should I take the items down? I sure don’t want you mad at me!
I’m not mad at anybody. You are welcome to use excerpts. Thank you for linking to my site.
My wife appreciates your posting information on Versed. She has been telling me for a long time how useful it is to research hospitals to be able to employ an amnesiac drug so that patients will not know that strangers have operated on them.
Thanks,
Dan
I encountered this supreme lack of regard for a patient myself. I went through the whole rigamorole as well and had my case thrown out of court because I didn’t have the 25,000 dollars for a designated “expert witness.” I have copies of my medical documents, the so called informed consent, the incredible lack of skill in performing my surgery, x rays along with documentation of all the subterfuge, ducking, dodging and lying that went with it. I was actually secretly pleased to find others who went through the same thing, even to the point of my Dr. insinuating that I was insane for not liking his bad surgery. I have those letters from the surgeon up there too. My story can be viewed at http://www.nomidazolam.blogspot.com It is eerily similar to what you guys went through. Thank God it was only an arm surgery. IF you decide to go to my blog, be careful if you are easily upset. I put up “comments” which are nasty evil remarks from health care providers. It will give you some insight as to how we are viewed by the medical elite and it isn’t pretty…
I found out 7 months after my surgery that another surgeon was present in the OR who I had never met. Of course they are telling me the main surgeon did all the work.
That’s the scary thing. I’m sure that it happens all the time.
Yeah… and mine was a private clinic, private practice doctor, scheduled in advance. If I had known, I would have run.
My operation was cosmetic and functional rhino, so it is not anywhere near as horrific as your wife’s… but yeah, I paid for a 40-year expert, not some guy a few weeks out of residency (who just “observed” as they say).
I had bad vibes but I couldn’t cancel at the last minute because the anesth. got to me first.
Anyway, I hope you two are coping OK with the court this week.
Thanks very much. My wife is up against a very powerful opponent with unlimited resources — but there are very fertile grounds for appeal.
I am in Pennsylvania and would love to join you and then all we would need is a third person who comes from another location and initiation of a class action suit on the issue of “Ghost Surgery” – which is illegal in Maryland – could be another option for you and your wife to consider. I was so shocked at that aspect of the deceit at Hopkins, especially since the difference between a person who is board certified and one who just barely has a medical license means so much for the risks a patient faces. Also I was so glad to read that your wife held out on the issue of informed consent. I signed a consent at Hopkins which was not witnessed and was changed after I signed it. Then they got somebody to sign it as if a witness to my signature but at least that person did have enough decency to write the correct date of his/her signature, which occurred 2 days after I signed the form. There are so many aspects pertinent to informed consent and it is something which needs to be improved in every jurisdiction. Has anyone ever been given a copy of what they signed, and at the time of signing? You receive a copy immediately with any other contract with a licensed person, even for contractors doing fairly minor home repairs in states where they are licensed. I have never received a copy of an informed consent form at the time of signing and when I tried to get it at Hopkins the surgeon (who allegedly was going to operate on me) gave me a runaround by insisting it had to be obtained via a request sent to the medical records department. I needed the surgery (asap according to my local surgeon)and had no good options to go elsewhere on short notice and get it done since it had to be done at a tertiary care center.
It sounds like the judge denies ALL of your motions and grants all of theirs. Hardly a fair fight.
I have a question about medical records – what is the name of the paper where they list which doctors were in the OR, when? Like an “OR log”, handwritten by a nurse or tech, which tells when which doctor was there?
Did you ever see that piece of paper? I understand if you can’t say here. I am asking because I just want to see that out of my file… so far they are only giving me summaries. So I need to request it specifically, I think.
My big “opponent” is The Doctors Company (assets: $3 Billion), who are now requesting my records so they can “investigate”.
Ugh, you have all my sympathy! Your case really sounds like it is headed for appeal, especially after this judge. Maybe when they remand it, they can remand it do a different judge.
Get the operative report as well as every page of the anesthesia records, per-anesthesia, post-op which may be called recovery room. Specify nursing as well as physician notes, copy of the order sheets for every step of the way- there likely will be totally separate orders and nursing notes etc. on separate pages for each place (room) the patient was in (admitted to)
pre-anesthesia should be typed above, not per. I am too tired to type but am so full of comments I want to make! Above all else, I’m overwhelmingly thankful for what you have documented in these excerpts you’ve freely made available. The lawyers who tried to squelch everything might have actually felt some pain when your freedom of speech was not as restricted as their employers wanted.
Thanks for the comments Molly.
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.
The risk of complete heart block from treating typical slow/fast AVNRT by targeting the slow pathway (the standard approach) is about 1/1000.
The risk is somewhat higher for atypical AVNRT (fast/slow or slow/slow) is somewhat higher but nowhere near 1%.
This woman had a right to have the doctor whom she chose do the procedure. She likely thought – as did Pam – that because she was going to a particularly skilled and experienced practitioner that the risk would be lessened.
What right did Dr. Epstein – or Calkins – have to decide for the patient that they could hand the procedure off to a complete stranger without telling the patient?
This is nothing less than fraud and a betrayal of trust.
It is plenty more. Ghost surgery has been found to be illegal in Maryland at least.And the idea of doctors in training needing the experience has been written about plenty in medical journals. When my brother was a surgery resident, he learned how to establish a doctor patient relationship and rapport, which also enabled him to ask for and receive consent to operate. Of course, that was a long time ago … and English was his primary language!
The old standby.
“if it is not documented it didn’t happen”
Unfortunately, the converse is regarded as if it was true. Just because somebody writes something in a medical record, reality has not been changed to conform to that notation. Even if the patient has an eyewitness with them. I suppose a tape recording, even if the applicable laws about wire tapping and otherwise taping a conversation were followed, would be ruled inadmissible when that is the request of the heavily funded lawyers. If the judge wants to be reelected and thus needs those lawyers support, financial and otherwise, truth will not be admitted!
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…
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…..
You must be kidding me. It’s ok to switch doctors without consent?
Frank, here is what my so-called “informed” consent says; “I hereby authorize Dr.________ and whomever he/she designates as his/her assistants to perform upon ______ the following procedure:_________” I think this is how they get around it. Define “assistant” for me. You and I would think that this would mean those assisting the Dr. but I think it means assistant as in substitute associate. This is in violation of the law. They MUST have a list of persons performing any duties for the patient. They must use a separate piece of paper if there are so many that they have need of it. It’s the law. Try to get it enforced.