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Posted on: Apr 28, 2020

The Plaintiff decedent, was a 59-year old man employed as a carpenter.  In May 2015 he became seriously ill from a disease called myocarditis, a rare heart condition caused by a virus.  Plaintiff was initially was being treated at a satellite hospital, but it soon became apparent that he would need more sophisticated care than that facility was capable of providing.  Plaintiff and his family wanted him to be transferred to the best hospital in the area for cardiac care, but his insurance would not cover treatment from that hospital and thus his only alternative was to be treated at defendant hospital.  Plaintiff thereafter received ventricular assist devices to aid his heart in pumping blood.  He was placed on the heart transplant list through UNOS, a private organization that oversees the nation’s organ transplant system.

In June 2016, UNOS placed defendant hospital’s heart transplant program on probation due to “low volume and early term recipient deaths” and “concerns with its quality management protocols.” UNOS required the hospital to send letters to patients in the heart transplant program informing them that probation had been imposed.  Any other content in the letter was left to the hospital.  On June 27, 2016, defendant hospital wrote a letter to its heart transplant patients, including plaintiff, stating that it had agreed to go on probation, which was due to its having had a low volume of heart transplant patients in 2014. The letter did not list the more serious reasons for imposition of probation and also set forth misleading statistics regarding the program’s one-year survival of patients.  Had plaintiffs family been told the truth, they would have transferred care to the other transplant hospital in town which was not on probation, where plaintiff now had insurance coverage, and according to one of the defendant physicians, he would be “alive and well today.”

Instead, plaintiff stayed at defendant hospital. On August 25, 2016, he was taken to surgery to receive his heart transplant.  After being placed on a heart lung machine, which bypasses the blood going and coming to the heart, the lead surgeon placed a cannula (a tube carrying blood) back towards the heart as opposed to upwards towards the brain.  The aorta, the major vessel carrying blood from the heart to the brain, was supposed to be clamped below the cannula, thereby isolating the heart, but because of improper positioning of the cannula the surgeon clamped the cannula instead of just the aorta.  Eight minutes later, he cut the graft from one of the previously installed assist devices, which caused plaintiff to exsanguinate roughly half of the blood in his body.  The surgeon next placed another clamp on the cannula, causing the heart lung machine to totally shut off.  The surgeon finally recognized the problem, unclamped the cannula, placed it in the right position, and clamped the aorta. Blood was restored to the brain.  It was a matter of contention as to what, if any, brain injury occurred during this period of time.

The lead anesthesiologist was a well-recognized expert on the operation of the cerebral oximetry monitor, a machine that measures oxygen levels in the brain. But he left the room before the crisis occurred, leaving his colleague in charge during his absence. The physician left in charge was an inexperienced anesthesiologist who had been working at the hospital for roughly one week. He failed to watch the monitor or inform the surgeon that the oxygen saturations had dropped precipitously. 

When the lead anesthesiologist returned to the operating room, at which point the problem with the cannula had already been corrected, he noted that plaintiff’s pupils were fixed and dilated. The surgical team decided to halt their efforts. They contacted the explant team that was removing the donor heart at another nearby hospital and told them to stop.  They then went out and told the family that plaintiff essentially had sustained permanent brain damage as a result of “not getting enough anesthesia.”  They were not told the real reason for the operating room fiasco.  They were told that he would not receive the donor heart, that he could be placed on ECMO (mechanical life support) for forty-eight hours, and that he would not receive another heart.  Faced with these alleged facts, the family turned off the heart lung machine and plaintiff expired.

Three hours after the surgery, the surgeon dictated an operative note in which he stated that the cannula was pointed down towards the aortic root and was clamped.  Three days later he removed that language.  The original unedited operative note was hidden from plaintiffs counsel until late in the litigation and was only produced due to an erroneous belief by the defendants that plaintiffs’ counsel already had that document.

Plaintiffs heart transplant surgeon, Dr. Laks, had never testified before and only got involved because he was appalled that the donor heart was not put into plaintiff.  It was also his opinion that there was an 85% to 90% chance that plaintiff had not sustained a brain injury.  The jury would have been able to infer that the transplant was not completed so it would not have to be reported as an early term recipient death from a transplant, thus eliminating the risk that defendant hospital’s heart transplant program would be shut down.

The case presented issues involving multiple fields of medicine: cardiothoracic surgery, cardiothoracic heart transplant surgery, anesthesiology, perfusion, neurology, organ regulation, and economic statistics.

Had plaintiff received the heart, his life expectancy would have been roughly ten more years.  He may have been able to return to work after one year.

Shared by Kampinski & Roberts

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