And The Defense Wins
Published 7-6-16 by DRI
Tom Kendrick and Bains Fleming
In Surles v. Murray, et al., the plaintiffs brought personal injury, loss of consortium, and wrongful death claims under the Alabama Medical Liability Act on behalf of a man who suffered an anoxic brain injury during a surgical procedure and later died.
The deceased plaintiff had a long and complicated medical history. As a child he ingested a caustic substance—Drano or Lye—which caused scarring to his esophagus. As a result, he had swallowing difficulties for most of his life. In April 2012, the decedent was to undergo a surgical procedure to repair a trachea-esophageal fistula. The fistula had been covered by an expandable metal esophageal stent. The surgical plan was to place the patient under general anesthesia, remove the stent, perform an esophagectomy, and then repair the fistula. Unfortunately, an unforeseen complication arose during intubation. The stent invaded the trachea causing it to collapse, cutting off the airway. An emergency surgical airway was required and the surgery was canceled. The patient survived for a little more than two weeks before life support was removed by his family.
At trial, the only remaining defendant was the anesthesiologist represented by Mr. Kendrick and Mr. Fleming. The plaintiffs claimed that the anesthesiologist was guilty of a breach in the standard of care for failing to conduct a bronchoscopy of the trachea prior to intubation and for failing to use a fiber-optic bronchoscope during the intubation to ensure that the balloon/cuff on the endotracheal tube was placed below the fistula. The surgeons had requested a endotracheal tube with nerve monitors to protect the recurrent laryngeal nerves. This placed limitations on where the balloon/cuff could be placed. Also, there are no reported cases in the medical literature discussing the placement of an endotracheal tube in a patient with a fistula and a stent or an esophageal stent blocking the airway.
After all of the evidence was presented including two expert witnesses, the plaintiffs’ argued that they were entitled to compensatory damages of $350,000 on the personal injury claims and punitive damages of $2,000,000 on the wrongful death claim. The jury deliberated for just over an hour and then returned a defense verdict.
Mr. Kendrick and Mr. Fleming are members of the DRI Medical Liability and Health Care Law Committee.
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