The Supreme Court of the State of New York Appellate Division: Second Judicial Department held in its Decision & Order dated December 12, 2018: “[u]nder the circumstances presented, we disagree with the Supreme Court’s determination to instruct the jury on the emergency doctrine. The emergency doctrine ‘has been reserved, in a medical context, to situations where a doctor is confronted by a ‘sudden and unforeseen condition’ and is forced to undertake care under less than optimal circumstances,’ and is inapplicable where the defendant physician was trained and prepared for the specific emergency.”
The Underlying Facts
The plaintiff commenced her New York medical malpractice action against the defendants after the plaintiff’s decedent died several days after surgery. The evidence adduced at the New York medical malpractice jury trial established that on March 22, 2007, the decedent underwent surgery to the cervical region of her spine. On March 27, 2007, due to swelling in her neck, the decedent underwent two procedures: (1) a tracheotomy, meaning a hole was cut into her windpipe, and (2) a tracheostomy, where a tube was inserted into her windpipe to enable her to breathe.
In the days after the surgery, the decedent was improving and was out of bed and talking.
On March 30, 2007, a nurse and respiratory therapist were removing a Passy-Muir valve (a device designed to allow a patient to speak with a tracheostomy tube in place) and met resistance while attempting to place an inner cannula into the tube. The decedent began to experience shortness of breath. Despite attempts to suction the tube and ventilate the decedent manually with an Ambu bag, the decedent’s oxygen saturation levels continued to drop to the low 60s, and her level of consciousness rapidly decreased. Accordingly, the defendant anesthesiologist and a physician assistant were paged.
When the defendant anesthesiologist arrived at the decedent’s bedside at 10:30 p.m., her oxygen saturation levels had decreased to 45, and she was cyanotic and bradycardic. Although he suspected a possible blockage in the tracheostomy tube caused by a mucus plug, he testified that the tracheostomy was still “fresh,” meaning the hole would likely close if the tube was removed, and he was therefore reluctant to remove it. Additionally, the decedent was wearing a halo brace and was experiencing swelling, which would further complicate replacing the tube. The ear, nose, and throat specialist who performed the tracheotomy advised the defendant anesthesiologist over the phone to remove the tracheostomy tube. The physician assistant was prepared to replace the blocked tube with a new tube but, instead, the defendant anesthesiologist attempted conservative measures, and requested assistance from another anesthesiologist.
The defendant anesthesiologist contemplated inserting a fiberoptic bronchoscope and directed the other anesthesiologist to retrieve it from another part of the hospital. When the decedent’s condition continued to decline, the defendant anesthesiologist removed the tracheostomy tube and within 30 seconds successfully replaced the new tube. The decedent died that same evening.
At the conclusion of the New York medical malpractice wrongful death trial, the defendant anesthesiologist requested and the trial court charged the jury on the emergency doctrine, over the plaintiff’s objection. The jury found that the defendants did not deviate from the accepted standard of care in their treatment of the decedent. The plaintiff appealed.
The New York Appellate Court held: “there is no dispute that it was foreseeable for secretions to block a tracheostomy tube and that [the defendant anesthesiologist] was qualified as an anesthesiologist to replace a blocked tracheostomy tube. Indeed, [he] admitted that, in his 30 years of experience, creating airways for patients is what anesthesiologists do. Further, [he] was advised by [the physician assistant] that a mucus plug was blocking the tracheostomy tube which he was ultimately able to replace within seconds. Accordingly, there was no sudden and unforeseen condition for which [the defendant anesthesiologist] was not trained or prepared. Therefore, it was error to instruct the jury on the emergency doctrine and the plaintiff is entitled to a new trial.”
Crayton v. Sher, D57571.
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