Sometimes an error or outcome is so terrible that hospitals or doctors will make a radical change in the way they provide healthcare.
I recently read about an inexperienced cardiothoracic surgeon who was performing a right upper lobectomy and injured the patient’s aorta, causing her death. It was the surgeon’s first-ever surgery of this type in private practice, and he decided it would be his last one, too, after this horrific outcome.
As a former hospital administrator, I know that when there are unexpected bad patient outcomes, accrediting agencies require hospitals to investigate and study them via a root cause analysis. The underlying idea is to find out what happened that caused the mistake, error, injury, or death—and what can be done to prevent it from causing harm to another patient.
As a medical malpractice lawyer, I know that hospital leaders, doctors, and their defense attorneys fight hard to keep this information under lock and key. Powerful healthcare and hospital lobbyists have convinced politicians, including the Texas legislature, to enact laws that keep root cause analyses and other actions by hospital peer review and quality control committees privileged. The idea, they claim, is that there’re more likely to be a solid investigation under the shroud of confidentiality.
Sometimes, though, the cat gets out of the bag and the patient or family finds out.
I can’t tell you how many times we’ve had clients have told us that a nurse quietly pulled them into a room and said, “this shouldn’t have happened,” and explain why they needed to hire a lawyer. Other times, a receptionist, front-office personnel, or patient advocate will comment that a doctor or surgeon has stopped doing a procedure or how things have changed since a bad event. Still other times, people read an article like this about one of our medical malpractice cases and realize “that happened to me, too!”
When the cat’s out of the bag, the hospital privileges don’t apply so neatly. That’s why healthcare defense lawyers sometimes try to assert other general legal defenses to keep evidence of a pattern of bad outcomes away from the jury. One of these defenses is called subsequent remedial measures.
Just like the name suggests, a subsequent remedial measure it a change in the way things are done after a point in time. The legal concept was largely developed in the product liability context to encourage correction of manufacturing defects that were discovered to cause injuries by preventing them from being used as an admission of liability in injuries claims before the correction occurred.
The lawyer for the cardiothoracic surgeon that I mentioned earlier is arguing that the subsequent remedial measure doctrine should bar any discussion of the fact that his client had stopped doing the type of surgery that he botched.
It’s important for plaintiffs and their lawyers to remember, though, that even a subsequent remedial measure can be available if there’s another purpose. There are several arguments on why this defense shouldn’t apply:
• Informed consent. There’s no subsequent remedial measure bar when the information is relevant to the feasibility of precautionary measures. For example, if there wasn’t a robust informed consent conversation documented between the surgeon and patient, there could be a claim on the ground that the significant risks of the complexity of the procedure and the surgeon’s inexperience were not disclosed to the patient. That lack of disclosure would give a reasonable patient reason to pause and withhold consent to proceed, particularly when the patent could be referred to more experienced surgeons in the area who could safely perform the procedure. That’s one of the issues that the Maryland Court of Appeals dealt with in a 2006 case styled Goldberg v. Boone, which you can read here.
• The surgeon testified that he complied with the standard of care. That testimony can’t be reliable if he hasn’t performed the surgery in the multiple years since the patient adverse outcome and death occurred. In other words, it’s relevant to show whether the surgeon is competent to provide an expert opinion at trial.
• It’s also relevant because it suggests that the surgeon realized that he lacked proper training for the procedure, which is relevant to whether he followed the standard of care. In other words, a surgeon can’t follow a standard of care that he or she doesn’t even know. It reminds me of a medical negligence lawsuit I filed against a bariatric surgeon and uncovered that had butchered a client in a new procedure called gastric imbrication. At deposition, I discovered that my client was his first patient for this procedure, and his only training for it was over a long weekend in Tijuana, Mexico.
• Even if the trial judge is skittish about allowing into evidence testimony of the fact that the surgeon stopped doing the procedure, there’s no doubt that the fact this outcome (and alleged negligence) occurred on his first-ever surgical attempt will be admissible.
If you or someone you care for has been seriously injured by medical mistakes in Texas, then contact an experienced, top-rated Houston medical malpractice lawyer about your potential case.
