Chemnick | Moen | Greenstreet

Medical Malpractice. It's All We Do. 206-443-8600

When One or the Other Means Both

By Chemnick | Moen | Greenstreet

Chemnick Moen Greenstreetrecently settled a nursingnegligence wrongful deathcase of a 73-year-old retired widowerwith two adult children for $925,000.

His death was caused by sepsis (thespread of an infection) as a result ofgauze being left in the deceased’s opensternal wound, which had dehiscedfollowing coronary artery bypasssurgery. Although it was apparentsomeone was negligent, their identitywas unknown. But it was determinedthat they would have worked for oneof two different hospitals, but notfor both. The deceased underwent emergencycoronary artery bypass surgery onOctober 24, 2003. Unfortunately,he had a respiratory infection:methicillin-resistant Staphylococcusaureus or MRSA. He ultimately requireda tracheostomy with ventilatorymanagement in the ICU.

A CT scan was ordered to check forother possible causes of his persistenthigh fevers despite being on antibiotics.The scan revealed the presence of asubstantial substernal hematoma,which was drained by a physician’sassistant on November 7. As a result,the deceased was left with an opensternal wound about the size of a 50-cent piece near the distal end of hisoriginal incision. Although not notedin the record until almost two weekslater, the wound included a sinus trackor tunnel at least 3.5 cm long at the 12o’clock position, running an inch or sounder the skin.

The nurses at the first hospital wereordered to pack the open woundwith wet-to-dry dressing to promotehealing. A wetted 4 X 4-inch gauzewould have been placed into thewound with dry gauze placed on top.This process not only absorbs seepage,but also provides a level of debridementbecause the gauze is replacedon a daily basis. While a 4 x 4 gauzewould have fit in the open portion ofthe wound, it would not have fit intothe track. The hospital’s employeesacknowledged that the standard ofcare would be to loosely pack theentire open space of the wound topromote healing from the inside out.This could have been accomplishedby the use of gauze strips, commonlyreferred to with the brand name ofNuGauze. However, there was noorder to use NuGauze, it was notreadily available on the floor, there wasno notation that it was used, and thehospital did not bill for its use.

On the other hand, if one or more nursesat the first hospital happened to noticethe existence of the track, obtaineda gauze strip from elsewhere in thehospital and packed the wound with it, adifferent nurse changing the dressingthe next day would not know to look forit. At least ten different nurses changedhis dressing at the first hospital.When the wound-care nurse at thefirst hospital documented the presenceof the track on November 20, sheordered use of a wound vac instead ofthe wet-to-dry dressing. A wound vacinvolves the use of a black sponge cutto fit the shape of the wound, which inthis case would include the area of thetrack. The sponge is then attached to alow pressure vacuum. It is designed todraw moisture from the wound, but isnot strong enough to pull any retainedgauze embedded in the track.

The deceased’s condition graduallyimproved over the next 10 days sohe was transferred to a less acutecare hospital facility for continuedventilatory treatment of his respiratoryinfection and his open sternal wound.The wound by this time was down to1.5 cm long, 1 cm wide, and 2.5 cmdeep, with a 3.5 cm track or tunnel inthe 12 o’clock position.

The second hospital treated the woundwith a generic form of NuGauze,which comes in continuous stripout of a bottle. The nurses at the secondhospital were all trained to packthe wound until it was loosely filled,leaving a couple of inches extendingfrom the wound. They insisted theywould never cut the strip before completingthe packing, and that theywould never use more than one pieceof NuGauze in the same wound.

For the first couple of weeks atthe second hospital, the deceased’scondition continued to improve. Hisantibiotics were discontinued on thesecond day.His color was better, andthe wound continued to heal normally.The track had closed over by the end ofhis first week. During the second week,he was weaned from the ventilator.He was tolerating his tube feedingswell. He was able to transfer and sit ina wheelchair with moderate assistance,stand at the parallel bars, take steps inplace, and engage in other therapeuticactivity. His spirit had improved, andhe was looking forward to eventuallybeing discharged.

In the third week, however, thingsbegan to worsen. The wounddehisced to 2.5 cm x 1.7 cm x 3 cm. Thedeceased complained of abdominal pain,which continued despite medication.He slept poorly and became somewhatdisoriented. He was then found to havea boggy, erythematous sternum, andhis respiratory condition seriouslydeteriorated. On December 22, he wastransferred back to the first hospital forsurgical exploration after pus began toweep out from a place on the originalincision a few inches above the opensternal wound.

When the entire incision wasreopened, the surgeon found two,four-inch strips of what he referred toas NuGauze balled up an inch underthe skin and an inch above the opensternal wound, along with copiousamounts of creamy pus. Unfortunately,the strips were not sent to pathology,but were discarded immediately aftersurgery. This infection was also foundto be MRSA. The deceased becameseptic, placed back on ventilatorysupport, and managed in intensive care for 6-1/2 months before he finallysuccumbed. His condition fluctuated,but never returned to where he waswhen he initially was transferred to thesecond hospital.

Because the NuGauze was reportedlyfound near what would have been theapex of the track at the time he wastransferred to the second hospital,and because that track had closedover by the end of his first week there,the strips were apparently either leftin while the deceased was at the firsthospital before initiation of the woundvac or sometime during his first fewdays at the second hospital. Also, thestrips were likely left in on two separateoccasions, apparently for the purposeof packing the track independently.The four-inch length would not besufficient to pack the entire wound.

Of course, each hospital insisted theirnurses could not have been to blame.Although we concluded it was morelikely the gauze was left in at the secondhospital, we wanted to keep bothdefendants in the case so they wouldend up pointing fingers at each other,and in order to avoid the empty chair.To avoid a motion to dismiss at theclose of plaintiff’s case, we concludedwe would need to present conflictingevidence which, depending uponwhich version of the facts the jury believed,could implicate either of the twodefendants. To do so, we planned to callthe nurses who changed the deceased’sdressings at both institutions. Sinceone or more of them must have left thegauze in the track, and since it wouldbe a factual issue as to which nurse ornurses did so, we believed this wouldbe an issue for the jury and thereforenot a basis for dismissal.

Complicating this effort to keep bothdefendants in the case was the factthat all our expert witnesses testifiedin their depositions that it was unlikelythe deceased would have continued toimprove as he did if the gauze had beenleft in at the first hospital. Consideringthe deceased’s overall weakenedcondition, the fact that he had an activeMRSA respiratory infection, andthe fact that the wound track was openuntil the end of the deceased’s firstweek at the second hospital, it washighly likely that two pieces of balledup gauze strips in the open track wouldbecome colonized, and then infectedwithin a week to ten days. In such case,the wound would not have continuedto heal normally over the next threeweeks, and it would not have taken amonth before there were clear signsof infection.

Fortunately, our experts also testifiedit was still possible that the gauzewas left in at the first hospital beforeusing the wound vac since the patientwas being treated with antibiotics andthat with sterile technique, the colonizationof the retained gauze might nothave occurred until after the deceasedwas at the second hospital. However,to ensure our case would not bedismissed against the first hospitalon this basis, we agreed to allow thesecond hospital’s attorney to presenttheir expert witnesses out of order,so that there would be expert witnesstestimony implicating the first hospitalbefore we rested our case.

In addition to the issue as to whichhospital was liable by way ofrespondeat superior, there werecontested issues relating to causationand damages. By the time the deceaseddied on July 10, 2004, the sternal wound had completely healed, andthe local infection had cleared. Thecause of death was listed as pulmonaryfailure due to severe organizing chronicpneumonia. Other significant conditionsincluded severe coronary atherosclerosis.The deceased had MRSA pneumoniaand coronary atherosclerosisbefore the incident with the retainedgauze. Plaintiff’s experts therefore hadto project how these conditions wouldhave likely improved “but for” theset-back from sepsis due to theinfection from the retained gauze andto demonstrate the degree of organdamage, loss of nutritional reserve,deconditioning, and worsening ofpneumonia accompanying the sepsis.Since the deceased lived for another6-1/2 months in the ICU, our expertsconcluded that the septic episodelikely tipped the balance, or as oneput it, was “the straw that broke thecamel’s back.”

Finally, there were issues concerningdamages. The medical bills generatedby the first hospital totaled $1.4 million,although the amount paid by Medicareand the supplemental carrier were lessthan $375,000. Since the balance of themedical bill was written off, and sincewe were suing the hospital providingthose services, it was problematicto allege medical specials in excess ofthe amount paid, despite the languagein the instruction allowing for thereasonable value of medical services.For purposes of mediation, wecontended the reasonable value wasneither the billed amount nor theamount accepted from Medicareand the supplemental carrier. Wemaintained that since hospitals arepaid by individuals with and withoutinsurance at different rates, and fromentitlement programs such as Medicareand Medicaid at different rates as well,the reasonable value of such servicesshould be the melded rate representingwhat hospitals reasonably must receivefor the goods and services providedto remain viable and competitive.The hospital could not remain so if itonly received payments based on theschedule approved by Medicare.

The reasonable value of all thesemedical services, however, was onlythe starting point for determiningspecial damages in this case. Allexperts agreed that the deceased wouldhave remained at the second hospitalfor a period of time even without theretained gauze. The estimates rangedfrom a few months to six months, withvarious estimates of continuing lesserlevels of care. The issues were therefore:(1) how much more care was likelyrequired as a result of the retainedgauze, and (2) what was the reasonablevalue of that additional care. We arenow in the unenviable position oftrying to negotiate with Medicare onthis issue. We have had similar caseswith Medicare, settled over a year ago,where again the issue was whethertheir claim of lien should be reducedto reflect the level of care that wouldotherwise have been provided.

The other difficult issue relating todamages is the fact that the personalrepresentative of the estate broughtthe action on behalf of the statutorybeneficiaries. The deceased was closeto his daughter, who was appointedpersonal representative of the estate,but his son had been estranged formany years. Often, beneficiaries havesimilar losses of relationship and areable to agree to the division amongthemselves. In this case, the twochildren were estranged from eachother. Fortunately, the brotherobtained personal counsel, with whomwe managed to negotiate a percentagedivision of all general damages betweenthe two adult children. We felt this wasimportant in order to avoid a conflictin presenting the children’s claim ofloss of relationship. Because the jurycould allocate a sizable portion of thegeneral damages to pre-death pain andsuffering, this would be an asset of theestate and therefore divided equallybetween the two children since therewas no will.

Although the case did not settle atmediation, we continued to negotiateboth directly and through themediator, the Hon. Terrence Carroll,and ultimately reached a settlementwith contributions from both hospitalsbased upon their risk at trial.

Paul Chemnick, J.D., is a partner inthe Seattle law firm Chemnick MoenGreenstreet, where his practice is limitedto medical negligence claims.

Chemnick | Moen | Greenstreet
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