Man Files $15 million Lawsuit Against NYC Citi Bike Claiming Smell Loss From Bike Crash

Image by Pharos of Wikipedia

In 2013, a man rented a bicycle from New York City's Citi Bike program. Apparently while riding this rental bike, the front wheel struck a wheelstop installed near a bicycle docking station which the man did not notice, flipping him resulting in head trauma. This head trauma resulted in permanent smell and taste loss. [link]

The wheelstop is meant to prevent cars from from backing into bike stations, but the lawsuit alleges "no cones or colored warnings to alert a bicyclist of its existence... constituted a trap for the unwary."

Regardless of the legal merits of the case, how does head trauma like this cause smell and taste loss?

The smell nerve is located right between the eyes and is analogous to the roots of a plant where the plant is the nerve next to the brain and the roots are the nerve endings that go through the skull bone (cribiform plate) and into the nose where "smell" is detected (the yellow in pic below). With significant head trauma, the brain suddenly moves and "bounces" around in the skull when struck. When this happens, the delicate smell nerve endings which are going through the bone "tear" when the brain moves relative to the bone.

With such nerve damage, smell can be permanently lost. With complete smell loss, taste can be adversely affected given so much of flavor is attributable to smell. As such, the man can technically probably still taste (salt, sweet, sour, bitter, etc), but not smell.

BTW... Did you know that the tongue taste map we all learn in school is incorrect?


Source:
Conn. man files $15 million lawsuit against NYC, Citi Bike, claiming nerve damage from bike crash. Daily News 2/27/14

Read More

Don't Like a Research Paper? Sue the Journal and Authors...

What is a lawyer to do if medical research produces results that make it more difficult to win lawsuits? Why you sue the medical journal and the researchers who authored it.

And you ask the medical journal to retract it.

And than you ask for a court order forbidding the report to be entered as evidence in future litigation.

Sound like a joke?

Wish it was, except it happened... is happening...

A Boston lawyer has sued the American Journal of Obstetrics and Gynecology for a case report published in 2008 regarding an infant delivery in which a brachial plexus injury was sustained via natural forces of labor without any excessive traction provided by the physician.

More info can be found on the lawsuit here which was initially dismissed by a trial court, but is on appeal to the First Circuit.

Given I'm an ENT, I can't necessarily state whether this published medical report has merit or not, but typically if a study is without merit, one criticizes it by publishing additional research studies to either support or refute it.

If lawyers now start influencing what can be published or not, or indirectly influence researchers whether to publish "unpopular" results for fear of lawsuits, it will have a chilling effect on the advancement of science and medical research.

Hopefully, suing medical journals and researchers will not become a popular trend.


Sources:
Publish an article that undermines lawsuits? See you in court. Overlawyered 9/18/13

Maternal forces causing injury. United Brachial Plexus Network 5/16/11

Permanent brachial plexus injury following vaginal delivery without physician traction or shoulder dystocia. American Journal of Obstetrics & Gynecology. Volume 198, Issue 3 , Pages e7-e8, March 2008

Read More

ENT Surgeon Sues Spine Surgeon for Wrong Sided Surgery

Wrong sided surgery is extremely rare occurring anywhere from 0.09 to 4.5 per 10,000 surgeries performed.

It is almost unheard of when the patient is a surgeon as well.

On Nov 13, 2012, media reported that an ENT surgeon (plaintiff) sued his spine surgeon (defendant) over wrong-sided surgery.

The ENT surgeon had spine surgery in 2011 for low back pain which was allegedly due to pinched nerves. The treatment called for laminectomy surgery on the right side which entails bone removal to prevent the nerves from being pinched further thereby alleviating pain.

However, the ENT surgeon claims wrong-sided surgery in that left back surgery was performed rather than the right side. The spine surgeon claims he performed a left-sided approach to the right side.

Here's a video news report which includes radiological images that does appear to show bone removal on only the left side (rather than the correct right side).



Although it may seem like an open and shut case of malpractice for wrong-sided surgery, as in most cases of medicine, it is not that straightforward.

Given I'm not a spine surgeon, I asked my good colleague Dr. Jeffrey Wise who is a spine surgeon with Blueridge Orthopedic and Spine Center to comment further in this particular case.

After review of available publicized information, Dr. Wise felt that there were several possible explanations of what may be going on:

1. It was truly wrong-sided surgery that the spine surgeon is trying to cover up.
2. The correct surgery WAS done utilizing an opposite side technique.
3. It may be lack of informed consent on the part of the spine surgeon (the approach was not explained clearly to the patient).
4. The ENT surgeon may have misinterpreted the informed consent and not understood the procedure.
5. The correct procedure was done and the ENT surgeon did not have the result he was hoping for or he may have wanted to be disabled for secondary gain.

Some facts...  It is possible to do right-sided back surgery via a left-sided approach as illustrated in the textbook diagram shown in the video with the tubular retractors.

In fact, it is indeed easier to decompress the lateral recess and exiting nerve root of the spine from the opposite side via the open approach. The surgery can also be done via a minimally invasive approach (as in this case), but it is not considered standard approach of most spine surgeons who would usually use the tubular system and go on the same right side for a unilateral decompression.

On another note, the decision on the necessity for spine surgery is interesting because in the pre- and post-axial MRI pictures shown in the video, while there is clearly a spine defect on the left, the pre-op picture does not show any pathology that suggests surgery was even needed. Perhaps there are more images that do show the nerve compression better, but they are certainly not shown in this article.

From a legal standpoint, it would be possible to prove or disprove that wrong-sided surgery was done if there is clearly bone removal visualized from the right side (presuming spinal stenosis was the diagnosis for which surgery was performed) or a disc herniation was no longer visible (if a disc herniation was the problem). This scenario would favor the neurosurgeon.

However, if the bone on the right side (or disc herniation) was still present, that would favor the ENT surgeon.

Unfortunately, based on the limited publicized images shown, it is impossible to clearly tell from the images shown or information provided in the article. Again, the images shown do not show a surgically justifiable lesion to begin with and only show bone removal from the left spine.

- Dr. Jeffrey Wise

Source:
INVESTIGATION: Surgeon v. Surgeon in wrong-side surgery case KFOR.com 11/13/12

References:
Avoiding wrong site surgery: a systematic review. Spine (Phila Pa 1976). 2010 Apr 20;35(9 Suppl):S28-36.

Read More

Problem with Medical Protocols (and Lawsuits Because of Them)

Over the past decade working in hospitals, I've seen the proliferation of "established procedures and protocols" for literally everything under the sun...

• Chest Pain Protocol
• Discharge Protocol
• Pneumonia Protocol
• Stroke Protocol
etc, etc, etc

Protocols are essentially standing orders that are supposed to be implemented whenever a given medical situation occurs. It is supposed to follow best evidence-based practices and make it easy for healthcare personnel know what to do without thinking to hard (akin to a checklist a pilot performs before flying to ensure they did not forget something).

The problem with protocols are that it can be made so detailed as to become worthlessly bloated. To use an analogy, take the protocol, "Going Shopping Protocol."

Protocol A (Simple):
1) Make grocery list
2) Drive to supermarket
3) Pickup and purchase items on grocery list
4) Come back home

Protocol B (Detailed):
1) Pickup #2 pencil
2) Sharpen pencil to appropriate point using pencil sharpener model 15-231
3) Test pencil to ensure proper writing ability
4) Obtain 3x4 inch index card
5) Write shopping item #1 on index card using pencil (from steps #1-3)
etc, etc, etc

Now when dealing with something as complex as medicine, protocols can be a godsend or hopeless depending on how it is written and who uses it.

And, that's where protocols become problematic.

Make a protocol too detailed, and it becomes bloated to the point of being useless, especially when dealing with time-sensitive medical problems.

Take for example something as simple as "Chest Pain Protocol." Orders for EKG, aspirin, IV fluids, sublingual nitroglycerin, and morphine seem obvious (assumption being heart attack), but what if we are dealing with a 10 years old child who got punched in the stomach by a bully? What about a stabbing into the chest?

Does that mean there needs to be multiple branch-points explicitly addressed in the protocol to handle every single possible scenario of chest pain under the sun at any age for every possible scenario?

Clearly, the answer is "NO"!

So protocols are made with several assumptions:

1)  A general level of medical competence of healthcare professionals
2 ) Healthcare professionals are already familiar with a given protocol and knows when to appropriately activate it
3) Protocols are deliberately made to be not too specific as it is understood that there is variability in the care of patients. Protocols can not and should not be applied cookie cutter to every patient as there are nuances that the protocol leaves to the judgement of the doctor.

Unfortunately, by making protocols to generalized, it does open up the possibility of lawsuits.

Take an ongoing case in Georgia where the medical director of an emergency room is being sued for professional negligence in the death of a woman from a heart attack... because of a chest pain protocol he wrote. Note that this medical director NEVER provided any direct medical care, did not have an established patient-physician relationship, and was not even in the hospital when the woman came into the ER. [link]

So is the solution to avoid having any protocols in place to avoid lawsuits? Sorry... NOT having a protocol in place can also be subject to a lawsuit. In 2000, a hospital was sued for either failing to follow established anesthesia procedures or protocols or failing to have any established procedures or protocols in place. [link]

So what to do?

Well, getting sued is a risk that is inherent to the medical field, especially whenever there is a bad outcome.

As such, the default action taken by physicians and hospital administrators are to minimize or spread the risk. How?

• Have as many different physicians write-up a given protocol that is signed off by everybody (spreading the risk)
• Avoid positions of responsibility (default scapegoat for lawsuits)
• Involve many physicians in the care of a patient (spreading or transferring the risk)
• Have protocols, but do not depend on them (clinical judgement trumps protocol).
• Have MANY documented training sessions on how protocols are to be used and discuss weaknesses and strengths of them

References:
UPSON COUNTY HOSP., INC. v. HEAD 540 S.E.2d 626 (2000) 246 Ga. App. 386 UPSON COUNTY HOSPITAL, INC. v. HEAD. No. A00A1601. Court of Appeals of Georgia. October 13, 2000.

Gaulden v. Green, No. A12A1872 (Ga. Ct. App. Oct. 30, 2012)

Read More

Sinus Surgery Lawsuit Ruled Against ENT

A patient who had undergone endoscopic sinus surgery suffered detachment of the extraocular muscle resulting in double vision that required further surgical intervention.

A jury found against the ENT and ambulatory surgery center rewarding $2.5 million dollars to not only the patient, but also the wife "for loss of consortium".

Damage to the eye and vision is part of the normal consent process for endoscopic sinus surgery when considering the geographic proximity of the eye and sinus cavities.

Eye muscle injury as in this case is particularly relevant when surgery is performed on the ethmoid sinus cavity which is located between the eyes (purple in illustration). Risk of injury is even higher when powered instruments are used like a diego sinus shaver.

Although informed consent appears to have been present, the jury still found for the patient:

- $1.5 million to Mr. Dias for pain and suffering
- $0.5 million for loss of service
- $0.5 million to his wife for loss of consortium.

This case appears to suggest that informed consent does not really provide any legal protection. A bad outcome regardless of consent implies sufficient cause for lawsuit... and winning.

This case also suggests that any bad outcome can affect a patient's ability to have intimate relations with a spouse which is sufficient cause for lawsuit and winning.

I wonder if I now have to add to the informed consent (which may not afford me any legal protection) the possibility of "loss of consortium" with a spouse.

Source:
Patient Awarded $2.5 Million After Suffering Endoscopic Sinus Errors. Outpatient Surgery Magazine 9/5/12

Read More