A California medical malpractice jury returned its verdict in the amount of $13.16 million late last week in favor of a young woman who suffered a brain injury during an endoscopy procedure due to her blood pressure being dangerously low during the procedure.
The $5 million that the California jury determined was fair compensation for the noneconomic damages sustained by the plaintiff, who was 18-years-old when she suffered a life-altering disability as a result of hypoxia during the endoscopy, will be reduced pursuant to Civil Code section 3333.2. Adding in prejudgment interest and expert fees based on the plaintiff’s policy limit CCP Section 998 demand of $1 million that was served in June 2015, the final amount will be about $10.8 million.
The California medical malpractice trial lasted four weeks after which the jury deliberated for three days before it rendered its verdict.
The Underlying Facts
The plaintiff, “Stephanie,” suffered a mild hypoxic brain injury due to too low blood pressure for too long during a routine endoscopy procedure done under general anesthesia on March 21, 2013. Stephanie woke up laughing uncontrollably even though she understood that she was laughing in the absence of anything funny going on, and she immediately perceived that she felt different.
Stephanie returned to high school the next day, but was sent home because she was slurring words and acting like she was drunk. Two days after the endoscopy, she spontaneously began drawing very abstract, intricately detailed, sketches. While she had had a passing interest in art before the endoscopy procedure, her previous drawing was very conventional, and not particularly skillful.
Stephanie was seen as an outpatient a couple of times, and then admitted to Rady Children’s Hospital San Diego, which was where the endoscopy had been performed. Physicians from multiple specialties saw her and failed to come up with a diagnosis. Multiple MRIs and EEGs were normal. The persistence of her symptoms (the inappropriate laughter and exaggerated facial gestures persist to this day, although less and less often) ruled out a reaction to the anesthetic. Metabolic and toxicology lab studies all came back normal. Two psychiatrists agreed there was no evidence that this represented the unmasking of an underlying psychiatric disorder.
When Stephanie returned to school, she experienced significant fatigue, headaches, and difficulty concentrating in completing tasks, but was able to graduate that June. However, her English teacher testified that she had never seen such dramatic immediate deterioration in any student she had ever taught as she saw in Stephanie after the endoscopy.
Stephanie continued to follow up with her neurologist and was referred for neuropsychological testing. Although her IQ was scored as 116, the neuropsychologist believed that there was evidence of some cognitive deficits, which, basically, prevented Stephanie from functioning cognitively in the way that her IQ might suggest. At the suggestion of the neuropsychologist, the neurologist ordered a PET Brain CT scan, which was misread as showing hypometabolism in several areas of the brain, suggestive of anoxic injury.
Because of Stephanie’s injury, her acceptance to Cal State San Marcos, where she had planned to study nursing, was rescinded because she was unable to complete a required algebra course. She enrolled at Palomar College where she took one art class per semester, which was as much as she could handle until the Fall of 2017, when she was able to take two art classes. On the days after class, she was so fatigued that she would lay in bed for the entire day.
At times, Stephanie would not have sufficient energy/memory/executive function to eat or drink unless prompted. Her family never left her alone for more than a few hours at a time. Her peer interactions outside of class were minimal (before the endoscopy, she had been very involved with her church and helped conduct a service for special needs adults).
About three months after the endoscopy procedure, Stephanie’s parents and her then treating neurologist agreed that it would benefit Stephanie to seek the opinion of a second neurologist. The second neurologist’s records include the diagnosis of anoxic brain injury; nonetheless, he testified in a deposition that he was unsure of the diagnosis for a long time, and that the diagnosis of anoxic brain injury was in the chart largely for billing code purposes. However, the second neurologist made it clear that he was convinced from the beginning that Stephanie had a brain injury.
The second neurologist referred Stephanie to the brain injury rehab program at Scripps Encinitas in North San Diego County. She was diagnosed as having a central auditory processing disorder (she could hear sounds normally, but her ability to process those sounds into understandable language was markedly delayed, and her ability to understand and communicate responsibly was markedly diminished unless she was in quiet surroundings communicating directly one to one). Stephanie was given hearing aids which help somewhat; however, she still could not function adequately in an environment where there were multiple concurrent stimuli. As a practical matter, this translated into such things as being unable to drive (per the driving evaluation performed at Scripps Rehab).
The plaintiff’s anesthesiology expert testified during trial that Stephanie’s blood pressure was unacceptably low and sufficiently low to cause hypoxic brain injury. The radiologist who had interpreted the PET Brain CT testified during his deposition that the scan showed hypometabolism, but didn’t know the cause. The plaintiff’s nuclear medicine expert testified that the areas of hypometabolism described by the initial interpreting radiologist were actually low normal, and clinically insignificant; however, the initial radiologist looked only for areas of hypmetabolism, and not hypermetabolism, and it turned out that two areas of the brain were very strikingly hypermetabolic. Those two areas happened to be the frontal lobe (explaining the disinhibited behavior and initial slurred speech) and the associative visual cortex (explaining the hyper-detailed, abstract, sometimes obsessive interest in art). The plaintiff’s nuclear medicine expert testified that these findings were readily explainable as demonstrating injury to brain cells whose function is primarily to inhibit activity by other brain cells. In some dementia patients, and some patients with traumatic frontal lobe injuries, disinhibition is a well-recognized phenomenon.
Stephanie also began to display signs of dysautonomia, which is impairment of her autonomic nervous system, which can be caused by, among other things, hypoxic brain injury. This manifested as racing heartbeat (for which Stephanie ended up having to be placed on medication), heat intolerance, and transient growth hormone deficiency. The plaintiff’s expert concluded that, based on the blood pressure remaining low for a period of at least 41 minutes, and the absence of any other identifiable cause, the overwhelming likelihood was that Stephanie had suffered a hypoxic brain injury. Stephanie’s cardiologist, who treats her for dysautonomia, testified that he believes that hypoxic brain injury is the most likely cause of that condition.
The defense argued that Stephanie suffered from somatic symptom disorder and depression, which would explain her symptoms because there was no hypoxia event during the endoscopy procedure, according to the defense.
The defendant anesthesiologist admitted in his deposition that he would be concerned about the possibility of inadequate perfusion to vital organs if Stephanie’s blood pressure was allowed to drop more than 15% to 20% from baseline (as determined by her preoperative blood pressure). The actual numbers showed that every single blood pressure measurement that he obtained was at least 28% below her baseline and that, on average, her blood pressure ran 32% below baseline for at least 41 minutes.
Before undergoing the endoscopic procedure, Stephanie was an honor student, the captain of the basketball team, a varsity volleyball player, and worked with special needs adults at her church. She had made plans to go on missions to Guatemala and Africa later that year. She awoke from anesthesia a different person who has never come anywhere close to regaining the life she enjoyed before.
One of the plaintiff’s experts testified at trial that Stephanie could be left alone at least some of the time but the plaintiff’s neuropsychologist and psychiatrist experts testified that no one could predict which days would be Stephanie’s good or bad ones, and she required 24/7 care because of her susceptibility to extreme, disabling fatigue and intermittent problems with memory and/or executive function.
Although Stephanie can walk and talk and, at least initially, appear pretty normal, she suffered a life-altering disability as a result of hypoxia during the endoscopy.
If you or a loved one may have suffered a brain injury due to medical malpractice in California or in another U.S. state, you should promptly consult with a medical malpractice lawyer in California or in your state who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.
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