November 24, 2008

Trial Report

Anne C. Vitale A patient claiming permanent brain damage from a morphine overdose has reached an $850,000 settlement of her Adair County medical malpractice case against the hospital where she underwent surgery. "Like almost all cases, this case was settled on favorable terms because of exceptional facts, rather than exceptional lawyering," said plaintiffs' attorney Paul J. Passanante, of St. Louis. "As my mentor Leonard Frankel once told me: 'The best lawyer in the world would lose every case if he or she was on the wrong end of the facts,' " Passanante said. "This case does demonstrate, however, that a good case is a good case, regardless of venue." As part of the settlement, the parties agreed to keep their identities confidential. The patient, a 46-year-old married woman with two adult children, had a total vaginal hysterectomy and removal of her fallopian tubes and ovaries on Aug. 2, 2006. The surgery went smoothly. Afterward, her doctor wrote a prescription for continuous infusion of morphine containing three directives a loading rate, a basal rate and a patient-controlled analgesia rate to help control the patient's pain. The prescription called for the patient to receive a loading dose, the amount given at the beginning of treatment, of 3 milligrams of morphine. The basal rate, or amount of morphine delivered continuously to the patient, was zero. The amount of morphine the patient could give herself in a set window of time, known as the PCA rate, was supposed to be a maximum of 1 milligram every 10 minutes. A nurse correctly administered the 3 milligram loading dose. However, she misinterpreted the remaining two orders. First, she set the PCA apparatus to allow the patient to administer herself 1 milligram of morphine each hour instead of once every 10 minutes, an underdosage.

It was the nurse's second error that caused significant harm. Instead of following the physician's order for a zero basal rate, she administered morphine at a basal rate of 4 milligrams per hour. Three other nurses and several people working in the hospital pharmacy did not spot the error, and it went uncorrected for 15 hours. Around midnight, about eight hours after the loading dose had been administered and the patient had received 4 milligrams per hour, she began vomiting and continued to do so intermittently for the next several hours. By 6:30 a.m., the patient had received 60 milligrams of morphine through the erroneous basal rate delivery of the drug. Between 7 a.m. and 7:15 a.m., the surgeon examined the patient, who was still being administered morphine at the basal rate of 4 milligrams per hour, and, noting that she was too drowsy, had the PCA removed. At that point, the surgeon believed that the patient had had only 7.2 milligrams of morphine through PCA and that the order for a zero basal rate had been followed. The morphine infusion was stopped at 7:30 a.m. Around 9 a.m., the surgeon examined the patient after she complained of lightheadedness, breathing difficulties and extreme confusion. By 9:25 a.m., the patient's respiratory rate had dropped from 14 to 6 breaths per minute and her oxygen saturation rate had fallen to 70 percent whereas normal oxygen saturation is in the high 90s. The surgeon, suspecting a morphine overdose, administered a drug to counteract an overdose, particularly the side effect of respiratory depression, which restricts oxygen supply to the brain and can cause permanent damage. The patient was given a second dose of the drug to counteract a morphine overdose. At 10 a.m. the patient was still vomiting, was having problems with short-term memory and was confused. A neurologist examined the patient and concluded that her acute amnesia was caused by cerebral hypoxia oxygen deprivation to the brain. The patient was discharged six days after surgery but underwent outpatient treatment for her brain injury. She continues to suffer from short-term memory loss. As a result of the brain damage, the patient experiences difficulty with the normal activities of daily living and can no longer work. She has been advised not to drive, forgets people and places and has trouble managing her own medications. The brain injury also makes the patient more easily frustrated and depressed. The patient and her husband filed suit against the hospital in March 2007, alleging medical malpractice and loss of consortium. The patient claimed that the hospital breached the standard of care by administering morphine in a dose far exceeding the surgeon's order; that the nurses failed to verify the correct dosage of morphine and knew or should have known that the amount prescribed posed a high risk of overdose; that the pharmacy's employees and agents did not attempt to verify the dosage was safe; and that the hospital and its employees failed to properly monitor the patient for dosage errors and recognize the symptoms of an overdose. At mediation, the parties agreed to settle the case. Without admitting liability, the hospital agreed to pay the patient $850,000 about $15,000 less than the cap on damages in this case. Defense counsel, whose identity is also subject to the confidentiality agreement, verified the settlement details, noting that, "defendant would have accepted responsibility at trial." ■Facts of the Case ■Type of Action: Medical malpractice ■Court: Adair County Circuit Court ■Case Number/Date: Confidential/Aug. 28, 2008 ■Verdict or Settlement: $850,000 settlement ■Plaintiffs' Experts: Thomas Ireland, St. Louis (economist); Dr. Michael E. Mullins, St. Louis (medical toxicology); Daniel Orme, Columbia (psychologist); Robert Paul, St. Louis (neuropsychologist) ■Defendants' Experts: None disclosed ■Special Damages: $80,723 medical expenses; $434,000 lost wages ■Caption: Jane Doe, et ux. v. confidential hospital, et al. ■Plaintiffs' Attorneys: Paul J. Passanante and Dawn M. Mefford, Simon Passanante, St. Louis ■Defendants' Attorneys: Confidentialakes it easier," Mefford said. "You never know what a jury's going to do." Missouri Lawyers Media, 319 North fourth Street, 5th Floor, St. Louis, Missouri, 63101, (314)421-1880 © 2009 Missouri Lawyers Media, All Rights Reserved.