Facts

On Feb. 12, 2007, at 11 p.m., paramedics admitted Simmie Wright Sr., then 89 years old, to the emergency room of Community Hospital of Long Beach ("CHLB") after he called 911. The paramedics reported to the emergency room physician that they had found the patient in his apartment amidst conditions that suggested elder abuse by his caretaker.

Although the patient's only recorded complaint was being hungry, upon examination, he was dehydrated, malnourished, over-anticoaguated on Coumadin, and had an apparent old fracture of his right hip. He also had pneumonia, hypoxia and was possibly demented. Because his primary care physician, Dr. Patel, was not on staff at CHLB and could not be reached, he was admitted to the service of Internist Siamak Rouzroch, M.D. who was on call to the emergency room (Dr. Rouzroch had no prior relationship with the patient).

Dr. Rouzroch, who called in various consultants for assistance, established a plan for stabilization of the various preexisting medical conditions, including cardio (congestive heart failure), respiratory (COPD), kidney disease and anemia. Among the consultants was Philip Hill, M.D., an orthopedist, to consult on the obviously fractured leg. In his history and physical note, Dr. Rouzroch indicated, among many other conditions, possible dementia, which was also indicated by the ER Admitting Physician, Dr. Hill, the anesthesiologist, and multiple nurses.

Dr. Hill saw the patient on Feb. 13th, and by then both a plane x-ray and a CT of the right hip demonstrated an old, complete intertrochanteric fracture of the right hip with about three inches of displacement of the femoral shaft. Dr. Hill recommended a right hemiarthroplasty (partial artificial hip replacement) to be done after the patient's condition was stabilized sufficiently for surgery. Dr. Hill felt the patient was stable on the first consultation of Feb. 13th.

The 68-year-old daughter of the patient, plaintiff Samella Johnson, overheard Dr. Hill promising the 89-year-old patient that if he had surgery, he would be walking the next day. She claimed she confronted Dr. Hill about this prognosis, and believed her father would never survive the procedure due to his existing medical condition, or that he would never be able to walk again. She told Dr. Hill that she was against the surgery, but she had no power of attorney for health care decisions. Dr. Hill recalled that Samella was against surgery, but felt the patient was mentally competent to make his own decisions, and the patient wanted surgery. He also confirmed Samella produced no legal authority to make health care decisions for her father.

From admission to Feb. 17th, the defendants contended that the patient's conditions were stabilized. That morning, Dr. Rouzroch postponed the surgery for that day because the patient had a high white blood cell count, and asked the hematologist following the patient to decide whether this finding should further postpone the surgery. Dr. Hill testified that later that day, although no consultant specifically wrote "cleared for surgery," the orders and notes of the hematologist and cardiologist clearly indicated to him that the patient could have the surgery the following morning, Feb. 18th. It was undisputed that the five multi-specialists who treated the patient never charted that the patient was "cleared for surgery."

A nurse presented the written consent to the patient late in the afternoon of Feb. 17th, after Samella left the hospital. The nurse testified that had she any suspicion the patient was mentally incompetent or otherwise did not know what he was signing, she would have consulted with her charge nurse and most likely Dr. Hill. However, since that did not happen, she presumed she had no such suspicion. Dr. Rouzroch was not aware of the plan for surgery in the morning.

Dr. Hill performed the surgery on Sunday morning, Feb. 18th, at 8 a.m., without telling Samella. There were no intra operative complications. His blood loss of about 500cc was normal for such a surgery.

Over the next few days, the patient did reasonably well. However, on Feb. 20th he began to deteriorate. On Feb. 22nd, the patient developed low blood pressure and a high heart rate and was transferred to the ICU. His blood studies showed a significant anemia, suggesting blood loss from somewhere. He was transfused from surgery to death with at least 17 units of packed red blood cells, without identifying the source of the bleeding. His blood studies became relatively normal and stayed that way. However, he developed kidney failure, respiratory failure and ultimately multi-organ failure. It was undisputed whether a "Do Not Resuscitate" order was agreed to by some members of the family (not Samella Johnson) on March 7th and the patient died after extubation on March 8th.

PLAINTIFFS' CONTENTIONS:
The plaintiffs claimed that the decedent clearly was demented and could not legally consent to the surgery. The surgery was unnecessary in an 89 year old with multiple medical problems and exposed him to a high risk of complication and death was reasonably certain. The consent obtained on Feb. 17, was invalid because of dementia. All of the defendants should have made the diagnosis of dementia or should have had a neurologist consult on the patient prior to surgery.

Plaintiffs also contended that he was never cleared for surgery by Dr. Rouzroch or any of the five multi-specialists, and therefore Dr. Hill acted prematurely.

It was recommended to the decedent to have a right hip replacement 7.5 years earlier, which the orthopedic surgeon did not perform because the patient was not medically stable to survive surgery.

After surgery, the decedent died of multiple organ failure due to the lack of blood, and essentially bled to death, most likely from undocumented and persistent bleeding from the surgical incision and the defendants failed to control the bleeding which lead to under perfusion of the patient's vital organs, ultimately causing his death.

Dr. Liberman opined that Dr. Hill should never have performed the surgery, that the risks far outweighed any benefits, and believed that death was a reasonable certainty, but had no criticism of the surgery itself. He believed the consent was invalid due to the patient's mental condition. He was critical of Dr. Hill for not correcting the post-operative hemorrhaging from the surgical site.

Dr. Schapira criticized Dr. Rouzroch and Dr. Hill for obtaining consent from a person clearly incompetent to give consent. The daughter's concerns were well taken, and, at a minimum, Dr. Rouzroch and Dr. Hill should have consulted with hospital administration and a neurologist for assistance. Although he acknowledged that Dr. Rouzroch did not clear the patient for surgery, which he commended, he did criticize his "quarterbacking" of the post-operative care with regard to his failure to identify and treat the uncontrolled bleeding. Dr. Schapira criticized the nurse for allowing an obviously demented patient to sign the "informed" consent. Dr. Schapira criticized Dr. Rouzroch for covering up for Dr. Hill in his dictated death summary, where Dr. Rouzroch misrepresented that the family agreed to the surgery, which was not true.

Plaintiffs further contended that no elective surgery is ever done on a Sunday morning, and Dr. Hill operated that day, without notice to the daughter, to be "under the radar" and to make $413,000.

All five experts who testified, as well as defendants Rouzroch and Hill, agreed there was no chart note clearing the decedent for this life threatening surgery.

DEFENDANTS' CONTENTIONS:
Defendant Rouzroch claimed that he met the standard of care in all respects both before and after the surgery. After Feb. 13, neither he, nor any consultant, nor any nurse expressed any concern regarding the patient's mental competency. He further contended that he did not clear the patient for surgery, as he noted in the record, but was deferring that decision to the hematology consultant who was to evaluate the high white blood cell count. After he saw the patient the morning before surgery, he heard nothing about the patient or his surgery. When he made rounds Sunday morning, he was told by the nursing staff that the patient was in surgery. He presumed, therefore, that the hematologist had provided the necessary clearance. The hematologist did note that he felt the high WBC was due to the administration of steroids, and not due to infection.

Dr. Hill denied he ever promised the patient he would walk again. Instead, he documented that the surgery was for relief of pain, which was likely going to continue without repair of the hip. On the afternoon of Feb. 17, he noted the hematologist had ordered the patient to have nothing by mouth after midnight and that his blood should be typed and cross-matched for two units of blood for typical replacement after surgery. He interpreted these orders as clearance for the surgery. He hoped to improve the patient's quality of life by eliminating pain during movement. He operates very frequently on Sundays on elective cases.

The nurse obtaining the written consent, who was training at the time, said she would have been physically accompanied by her charge nurse when she obtained the patient's written consent, and neither would have obtained it if they had any doubt of the patient's competency. The family is noted to be in the patient's room that afternoon, and she would have documented any objection to the surgery.

Both doctors denied the patient was bleeding to death. There was no significant surgical wound bleeding noted, and his anemia was corrected by transfusions. Other areas, such as the GI tract, were evaluated for bleeding, and nothing significant was found.

With regard to negligence, Dr. Glassman testified that Dr. Rouzroch complied with the standard of care in all respects. The possible dementia was in the differential diagnosis at admission, but was transient, and likely due to dehydration, infection and hypoxia. With regard to causation, he testified that the patient died of complications of multi-organ failure, but not due to bleeding. Instead, his kidneys began failing (prior to surgery) after a consultant ordered a CT of the neck with contrast to rule out an airway obstruction. The patient had a contrast-induced toxic nephropathy, as proven by a pre-operative abnormal rise in kidney function tests. After surgery, he went into an "atrial flutter" and was managed by a non-defendant cardiologist. This flutter caused insufficiency in heart function, which caused hypoperfusion of all vital organs, which never was successfully corrected, adversely affecting the lungs, kidneys, liver and other vital organs. Dr. Landers supported this hypothesis.

Dr. Gold believed everything Dr. Hill did, from acquisition of consent, to obtaining medical clearance, to the surgery, to the post-operative care, was within the standard of care.

Settlement Discussions

Defendant CHLB made a CCP 998 offer for a waiver of costs in exchange for a dismissal. There were no offers to settle.

Damages

Plaintiffs did not claim any economic damages. Plaintiffs' attorney presented a range of values, from $100,000 to $1,000,000 for decedent's anticipated life expectancy, to compensate the family for loss of comfort, society, companionship, etc.

Result

Defense verdict for all defendants.

Other Information

Prior to trial, Judge Jane Johnson would not allow plaintiffs to plead a medical battery cause of action. After the completion of plaintiffs' case-in-chief, Judge Michael Johnson granted defendants Hill and Rouzroch's motion for nonsuit as to plaintiffs' elder abuse claims. Judge Michael Johnson granted plaintiffs' motion to add the medical battery claim as against Dr. Hill, based upon evidence presented, according to proof at trial, but would not allow a claim for punitive damages.

Deliberation

two days

Poll

11-1 (no negligence as to Dr. Rouzroch and Community Hospital of Long Beach), 10-2 (no negligence and no medical battery as to Dr. Hill)

Length

17 days