Poor health outcomes alone are not grounds for a successful medical malpractice lawsuit in South Carolina. Rather, one has to prove the health care professionals failed to adhere to the accepted standard of care for their profession.
S.C. Code 15-79-110 is where we find definitions of medical malpractice standards and proof burdens. Medical malpractice is doing that which a reasonably prudent health care provider or institution would not do in the same or similar circumstances.
It is generally not enough to say that a different course of action by the physician or other health care provider would have had a better outcome. Just because the doctor could have done something different doesn’t necessarily mean the course of action taken deviated from the applicable standard of care.
Although the exact wording of this principle varies from state-to-state, the same general idea generally holds true in most other jurisdiction, including Alaska. That’s where the state supreme court recently weighed the case of Brandner v. Pease, a case in which a medical doctor, who was in this situation the patient, sued the anesthesiologist for medical malpractice after undergoing emergency bypass surgery.
According to court records, plaintiff suffered a heart attack in September 2009. He was rushed to a local hospital, where he underwent emergency bypass surgery. This was a six-hour procedure. At the start of the surgery, defendant anesthesiologist intubated patient and used a drug called propofol to induce anesthesia. Soon after, patient’s blood pressure dropped sharply. The cardiac surgeon however stated patient did not suffer complete cardiac arrest as a result. The surgeon performed CPR on the patient until his blood pressure stabilized, at which point the operation continued.
The anesthesiologist then then placed a probe into patient’s esophagus to take pictures of the heart and glean diagnostic information regarding patient’s condition. The probe failed and the surgeon decided to go forward with the operation anyway. The probe wasn’t replaced. The patient survived the operation and was discharged two weeks later.
Two years after surgery, the surgeon indicated his medical doctor patient had progressed well and had been steadily returning to practice.
Patient later filed a lawsuit against the anesthesiologist alleging his actions in the course of his surgery were below the standard of care, were recklessly and negligently performed and that the anesthesiologist was negligent, and his employer and the hospital were vicariously liable. He asserted he suffered severe and permanent injuries, lost wages and loss of life enjoyment. Specifically, he alleged compromised cardiac function and reserve, injury to brain with noticeable short-term memory loss, musculoskeletal problems, displaced sternal incision wound and extensive pain during prolonged healing.
Plaintiff presented an affidavit from a board-certified anesthesiologist in opposition to defense motion to dismiss. The expert witness indicated propofol was not an optimal choice in this surgery, and it led directly to patient’s cardiac arrest, as well as difficulty securing his airway. He also contended there was damage to patient’s heart, and that the length of surgery time was extended by anesthesiologist’s inability to get the probe placed.
However, it was later revealed that anesthesiologist had not practiced cardiovascular anesthesia, and he hadn’t used this type of probe in more than a decade, and his understanding was “generalized.” He also stated he wasn’t qualified to testify about either of these elements. He indicated that while the anesthesiologist’s techniques were “suboptimal,” he stopped short of saying they fell below the standard of care.
Defendants moved to exclude the expert’s testimony on the basis he was not qualified. Plaintiff asked for reconsideration, and the court upheld the summary judgment because even if he were qualified, he hadn’t causally linked the anesthesiologist’s allegedly negligent acts to plaintiff’s claimed injuries. That’s critical in any medical malpractice case.
Plaintiff appealed, and the Alaska Supreme Court affirmed. Justices noted that even when evidence is presented showing patients generally do better with one treatment than another, that’s not necessarily causal proof that a specific patient will do better. Here, the subject was that probe. Plaintiff’s witness opined patients who have the probes used in their surgery do better than those who don’t, but failed to provide any specific figures about the percentage who do better, in which ways and by how much. When defense expert witness countered this assertion and stated not using a probe has no effect on the patient, plaintiff expert witness declined to provide any testimony to the contrary.
Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.
Brandner v. Pease, Nov. 25, 2015, Alaska Supreme Court
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