This case was tried before a jury in Fairfax County, Virginia in January of 2019. It was reported in Virginia Lawyers Weekly.
Vincent Minor was healthy, gregarious 28 year old who loved to sing. In November 2014, he relocated from Atlanta to northern Virginia to begin a career in the Epic records keeping system at INOVA.
Mr. Minor had had a lap band placed in 2009 and had experienced multiple slips of the band since that time. In February 2015, he presented to Fairfax Hospital with symptoms that he attributed to another slip: difficulty swallowing solid foods, difficulty sleeping, and the feeling that post-nasal drip was “catching” on the band. CT imaging confirmed that the band had slipped and was causing a high-grade partial obstruction at the level of the band. The radiologist also noted that he had a massively distended esophagus and stomach above the band. Doctors were unable to reduce the band at bedside and he was scheduled for surgery to remove the band about 36 hours later.
As is common with slipped lap-bands, Mr. Minor’s dilated esophagus and stomach above the band created a large reservoir for retaining liquid. Despite being NPO for eight hours prior to surgery, on induction of anesthesia, he regurgitated and then aspirated copious amounts of gastric content. Despite the aspiration event, the decision was made to proceed with the band removal surgery instead of ordering an immediate bronchoscopy and lavage. The insult to his lungs from the gastric content was catastrophic and ultimately fatal.
Suit was filed against the bariatric surgeon and the anesthesiologist alleging that the standard of care required placement of a naso- or oro-gastric tube prior to intubation to evacuate retained liquid above the band. As an alternative to gastric tube placement, Plaintiff’s experts testified that the anesthesiologist could have elected to perform an awake fiberoptic intubation. Either procedure would have prevented the aspiration. Defense experts testified emphatically that “this is never done,” that placement of the tube would have risked perforation of the esophagus, and that even if the procedure were done it would not have prevented the aspiration.
According to the defense, Mr. Minor’s esophagus was stretched like a balloon and was in danger of being torn by the passage of a gastric tube. The defendant anesthesiologist testified that this risk was one of the chief reasons that she did not place the tube. In support of her reasoning, the defense said that he had been vomiting “almost daily” for 4-5 months before presenting to the ER and the frequent presence of gastric acid had thinned the walls of the esophagus. The only reference in the medical record to this vomiting was in the operative note and the anesthesia note generated after the aspiration event. There was no record of any report of vomiting anywhere else in the hospital record or in the record from the allergist he had seen a week prior. In fact, this symptom was denied on hospital admission.
A central issue in the case was the characterization of the regurgitant. The circulating nurse, assistant surgeon, and nurse anesthetist each testified that a large amount of secretions up from the esophagus and spewed out of his mouth during induction. The circulating nurse testified that in her 40-some years as a nurse, she had never seen anything like it and described fetching a towel to soak up the vomit from the operating table and keep them off of the floor. The CRNA described suctioning 300 mL of fluid from the oropharynx during intubation. The anesthesiologist’s account was much different. She testified that she saw only a small trickle “as if you had turned off a garden hose, but not all the way.” She further described her view of the vocal cords as she took over intubation efforts after the CRNA’s attempts failed as “pristine.”
Immediately after the aspiration event, the anesthesiologist left the OR and went to discuss the case with a senior colleague. The anesthesiologist described telling her colleague that only 25-50 mL had gone down her patient’s trachea. Called at trial by the defense, her senior colleague testified on cross-examination that there had, in fact, been no discussion about the volume aspirated. He also denied telling the anesthesiologist that “if only 25-50 mL went down, he will be fine.”
Volume is critically important to patient outcomes. All experts agreed at trial that the volume and acidity of the aspirate are two variables which have major impact on mortality rates following aspiration events. Plaintiff’s experts testified that the aspiration of more than 25-50 mL of acidic content is considered a “severe” aspiration.
After the aspiration, the anesthesiologist allowed the surgery to continue rather than calling for an immediate bronchoscopy and lavage. Plaintiff’s decedent was taken to the ICU following surgery, and the bronchoscopy note described the findings as a large aspiration. Plaintiff alleged that the delay was a second breach of the standard of care which contributed to the outcome. Plaintiff’s decedent was diagnosed with pneumonitis and ARDS, he never awoke after surgery, and was kept in the ICU for a month before his family made the decision to remove life support.
After nine days of trial, the jury deliberated for eleven hours before returning a verdict against the anesthesiologist alone for $3,401,451 including $3 million in compensation to his parents and two siblings. There was no loss of earnings claim, as Plaintiff’s decedent was unmarried and had no children.
The defense never made any offer to settle this case.