Walter Olson at Overlawyered.com forwarded me a case to comment upon.
The opinion was King v. St. Barnabas Hospital.
The facts of the case are that a 38 year old off-duty prison guard was playing basketball in the prison gym when he collapsed. Seven minutes later, medical clinic staff arrived to find the patient unresponsive and not breathing. CPR was started. A defibrillator was used to check the heart rhythm and the patient’s heart was in asystole, or “flat line.” The patient was defibrillated once – after one first responder thought the patient may have had episodes of ventricular fibrillation. The patient remained in asystole. No IV line was started and the patient was not intubated, even though the first responders had the equipment available. Six minutes later, a doctor arrived and inserted an IV. Epinephrine was given, but the patient remained in asystole and was pronounced dead.
The plaintiff’s expert – unnamed in the appellate opinion – testified that to a reasonable degree of medical certainty that defibrillating someone in asystole “eliminate[s] any chance of recovery for the patient” and that “securing the patient’s airway and administering oxygen is ‘vital’ to avoid hypoxemia.” The failure to provide IV medications “contributed to [the patient's] failed resuscitation and death and diminished his chances of survival.”
The trial court threw the case out, noting that the expert failed to show any studies showing survival rates of patients in asystole or whether medications given post-arrest improves a patient’s chances of survival.
The appellate court reversed the decision of the trial court, stating that the patient was “found in a life-threatening, nonresponsive state” and that ACLS protocols wouldn’t exist if there wasn’t evidence that the protocols improve survival.
I have so many issues with the case and the testimony that I don’t know where to begin.
Let’s start with the appellate court opinion. Dear justices: This patient wasn’t in a “life-threatening” state. He was dead … for seven minutes. Asystole without respirations equals death. If the medical personnel are able to revive a patient, they have brought the patient back from death. Failure to snatch someone out of the Grim Reaper’s hands should not be a compensable harm.
The expert’s opinions also bother me.
Yes, technically defibrillation causes “damage” to heart muscle. There is no evidence that defibrillation decreases survival or recovery for patients in asystole.
While it wasn’t known at the time the incident occurred, Dr. Gordon Ewy showed that delaying resuscitation for intubation actually decreases survival as well.
Failure to provide IV medications similarly has little effect on survival. Epinephrine doesn’t improve immediate survival or hospital discharge in cardiac arrest when AHA guidelines are followed. This paper (.pdf) shows that epinephrine actually tends to cause a trend toward less survival in cardiac arrest.
UPDATE: I forgot to check David Neuman, Graham Walker et al’s incredibly useful site “The Number Needed to Treat” regarding the utility of ACLS medications in cardiac arrest. Evidence-based opinion: 100% of patients receiving the medications “saw no benefit.”
A plethora of case law requires that expert opinions have some basis in fact. There was no basis for causation and there was little if any basis for the expert’s other opinions. A plaintiff should not be able to proceed with a case based on an unsubstantiated expert’s opinion about standards of care and causation. The circuit court was right to throw out the case. If the expert had some studies supporting his theories, he needed to put up or shut up.
I also thought it was … interesting … that the appellate court’s opinion identified the defense expert by name, but did not identify the plaintiff’s expert. Why was that? Afraid that the expert may take heat for his opinions if his name was published?
The appellate court took almost 2 years to come up with this opinion and then blew it.
Hopefully the New York Court of Appeals has better sense.