WhiteCoat

King v. St. Barnabas

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.

26 Responses to “King v. St. Barnabas”

  1. Patrick says:

    Jackassery dressed in robes.

  2. Matt says:

    “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?”

    Considering that all one would have to do to find out who the person was is go to the courthouse and look at the file, it seems silly to imply that the appellate court was somehow trying to protect the expert.

    The court overturned a summary judgment motion – they did not opine as to whether the plaintiff should ultimately prevail. In considering a summary judgment motion, all facts and inferences are to be considered in favor of the non-moving party. Not because they may not ultimately win at trial, but because there is a bias toward every person having their shot at their Constitutionally guaranteed right to a jury trial if they can show a justiciable issue.

    This is the key phrase:

    “We find, in any event, that plaintiff’s expert has adequately raised a triable issue of fact as to whether defendants departed from accepted practice in their resuscitation attempts. ”

    A triable issue of fact exists given that the inferences go in favor of the non-moving party (plaintiff). Likewise, if the plaintiff had moved for summary judgment, all inferences in determining that motion would go in favor of the defense. Now, you may not agree, and heck I may not agree with them had I read the trial transcript. They’re human, just like us. But one, they’ve read the transcript-we haven’t. And two, their words carry no weight with the jury, and all they’ve done is say that they will let the jury hear it.

    That sort of thing is offensive to the corporate backers of Overlawyered, I realize. But it was something this country was founded on – that ordinary folks, not just moneyed interests, get to dispense justice.

    • Hueydoc says:

      More “Matt Droppings” everywhere…

    • WhiteCoat says:

      Regarding the expert’s identity …
      How many people in the US are going to have the wherewithal to go to a courthouse in NY, look up the case, dig through all the case files, and find the expert’s name?
      By the way, if anyone does have such wherewithal, please forward me a copy of the expert’s name/opinion/report so that I can publish it.
      If protecting the expert wasn’t the reason for conspicuously failing to provide the plaintiff expert’s name when the court specifically named the defense expert, then what other reason was there for concealing the plaintiff expert’s identity?

      The key phrase in your summary judgment argument is that all “FACTS” and inferences from those “FACTS” have to be considered in favor of the non moving party. The plaintiff’s expert made plenty of unsubstantiated assertions. Where are the FACTS?
      I, as an expert, can allege that all the justices on the court are from an alien race and are shape-shifting to appear as justices in order to ruin our society. That doesn’t mean that we hold laser cannons to the justices’ heads until they can prove that they are, in fact, not aliens.
      When you start equating unsubstantiated expert assertions with facts, your credibility quotient sinks even lower.

      Then, instead of arguing the merits of the court’s opinion, you then throw dirt at Overlawyered’s “corporate backers” and try to see how much will stick. Ad hominem attacks just show that your factual argument is weak.

      Forcing everyone to defend baseless lawsuits at their own expense and engaging in personal attacks against anyone who would use factual references to challenge a court’s decision. Is this the type of “justice” that you advocate?

      • Matt says:

        “How many people in the US are going to have the wherewithal to go to a courthouse in NY, look up the case, dig through all the case files, and find the expert’s name?”

        Anyone with legs? It’s not rocket science. You go to the clerk’s office. And if it hasn’t been disclosed yet, it will be soon at trial. That’s what the court did – send it back to trial. So your implication that they’re hiding something makes little sense.

        “what other reason was there for concealing the plaintiff expert’s identity?”

        Without seeing the appellate transcript, we actually don’t even know if it was in there. You know nothing about the appellate court, yet you assume they’re on the plaintiff’s side? Because of one opinion? You’re more rational than that.

        “The plaintiff’s expert made plenty of unsubstantiated assertions. Where are the FACTS?”

        They’re in the APPELLATE RECORD, which I don’t think you’ve offered us a link to. The court does not republish the whole record in its opinion. If you feel this incensed about it, call the court and get the transcript, or go to the trial when it goes, and if you think this PHYSICIAN is wrong, report him. The court is relying on a PHYSICIAN’S opinion. You want to police this sort of thing, NOW is your chance.

        “Then, instead of arguing the merits of the court’s opinion, you then throw dirt at Overlawyered’s “corporate backers” and try to see how much will stick.”

        You’re arguing the merits when you haven’t read the transcript – just the opinion. You don’t even appear to understand what exactly they did procedurally. I don’t need to see what “sticks”. Mr. Olson’s position is well known.

        “Forcing everyone to defend baseless lawsuits at their own expense and engaging in personal attacks against anyone who would use factual references to challenge a court’s decision. ”

        Who is “everyone”? And without seeing a single record, how do you constantly conclude all these cases are “baseless”? At least the plaintiff’s expert has done that crazy thing of reviewing the evidence before reaching a conclusion.

        Do you have some ESP that the NSA needs to know about? Can you give us some lottery numbers? Your ability to know the merits or lack thereof of a malpractice case in which you haven’t seen the medical records borders on the otherworldly. You may actually be the only person qualified as an expert on the issue of alien shape shifters given this skill you apparently have.

  3. Tarl says:

    Much as it pains me to agree with Matt, reading the appellate court’s decision, to me it reads like “The lower court threw the case out on the wrong basis. Try again, this time using the right forms.”

    Entirely too much like having an equipment requisition bounced. Not because I shouldn’t get the equipment, but because I filled box 13(c)alpha subsection IIa with my cost center instead of my badge number.

  4. ERDOC says:

    “…ACLS protocols wouldn’t exist if there wasn’t evidence that the protocols improve survival.”

    Wow – that is dumb! That level of ignorance is astounding in anyone who answers a question with anything other than, “I don’t know. Let me do some research and I’ll get back to you.” In a Court of Appeals it is downright frightening. What unjustified faith in the American Heart Association! That goes beyond ignorance; that statement shows complete disinterest in data (aka as facts or reality).

  5. […] White Coat examines the case of King v. St. Barnabas, in which a New York appellate court approved a suit against first responders who failed in attempts to revive a prison guard who collapsed while playing basketball and was found unresponsive and not breathing. [Emergency Physicians Monthly] […]

  6. Mannie says:

    ACLS protocols wouldn’t exist if there wasn’t evidence that the protocols improve survival.

    ROFLMFAO

  7. joebob says:

    The prison medical clinic staff shocked his asystole and didn’t put an IV in? Then where did the “v. St. Barnabas Hospital” part come from? Deeper pockets than the prison?

    Agree that epi is just for show. So you can say “we did everything (including things that don’t work).” I wish our academic leadership would tell us to do CPR, defibrillation, and nothing else (don’t really buy hypothermia).

    • WhiteCoat says:

      The hospital contracted with the prison to provide medical care at the prison.
      Don’t know for sure, but I also wonder whether governmental immunity may have kept the prison from being named in the lawsuit.

  8. Don Miller says:

    When I was an EMT, I saw one person recover from Asystole.

    She lived 4 blocks from the Ambulance hall. The family saw her collapse, one called 911, the other started chest compressions. Within 2 minutes of their 911 call, there was a police officer on scene who took over the CPR. 1 minute later, our ambulance was on scene. The paramedics got a line started fast and did first round of drugs. She went into V-tac, we shocked her once, and got normal sinus. 3 days laters she walked out of the hospital. I think she lived 2 more years.

    I had been an EMT for about 6 months. The paramedics I was riding with said that they hadn’t seen it happen in 15 years.

    For her, everything lined up perfectly. When we snatch somebody back from death, it borders on a miracle. Failure to perform miracles shouldn’t be compensable.

    • Hueydoc says:

      Lawyers believe that if anyone dies for whatever reason, “It’s SOMEBODY’S fault !”
      They’re still trying to figure out how to sue God….

      • doc99 says:

        Service might prove a daunting task.

      • Matt says:

        And yet anyone who has been in a firm that does medical malpractice will tell you they pass on the vast majority of potential cases people bring in.

  9. Corker says:

    Contrary to what Matt states above, the name of the doctor in this case is not in the file. In opposing the hospital’s motion for summary judgment plaintiff’s counsel refused to disclose his/her name in their papers based upon the case of Rojas v. McDonald, 267 AD2d 130 (1st Dept. 1999). That case can be found here: http://scholar.google.com/scholar_case?case=6501624402983958148&q=267+AD2d+130&hl=en&as_sdt=4,33. I assume the logic behind this is that neither plaintiff nor defendant are obligated to disclose who their medical experts are until a certain point shortly before the actual trial and this motion was made well before that date. Even if the case does go to trial there is no guarantee the doctors name ends up in the actual file available to the public as the transcripts are not usually part of the file.

    • Matt says:

      If the doctor is the testifying expert, his name certainly will be available to the public. He will identify himself, his credentials, and give testimony, and he will have given a deposition by then. That testimony on the stand will certainly be public record. And the deposition will not be sealed either, so any of the parties, or their insurers, could distribute it if they wanted.

      The opinion you cite doesn’t say they don’t have to disclose it. More likely, the defense filed its MSJ before the experts had been deposed. Maybe even before they were all required to be named. We don’t have enough info to tell.

      But the theory that the appellate court is somehow trying to protect some physician whose name is available through ordinary discovery in the case, and who may actually testify at trial, is nonsense.

      • Corker says:

        Matt – You are absolutely right that the doctor will have to provide all that info once he is on the stand. All I was saying, and I believe I made it very clear, is it is possible his name never ends up in the actual file in the clerk’s office because the transcript is not usually part of the file maintained in the clerk’s office. In fact, other than when part of post-trial motions I have never seen a transcript in the court file. So the reality is the doctor’s actual testimony will likely never be part of the official record available to the public in the file unless someone wants to pay the absurdly high fee court reporters charge to obtain transcripts.

        As for the motion, it is my understanding that it is common for doctors names to be redacted when opposing a summary judgment motion. However, the moving party has to disclose their expert. So, no, there was no conspiracy by the AD1 to protect the doctor.

  10. I am wondering whey they did not an IV in. I mean, that’s pretty standard. Still, the key is that the guy was down 7 minutes. That’s a minute more than the max time before you have irrevocable brain death. Epi or whatever then would not have mattered – best case scenario would be that you bring back a vegetable. That should have been the focus of the defense.

    • Matt says:

      It may well be. The defense hasn’t actually put on their case. Filing of a summary judgment motion is not the full defense.

    • anon says:

      Dr. Killpatient stated, “…the guy was down 7 minutes. That’s a minute more than the max time before you have irrevocable brain death.”

      Just for the record, that statement is not true…not one bit.

      In fact, I think you would be hard pressed to find an ICU doc who has not seen a patient walk out of the hospital who previously been down for more than 7 minutes.

      I have seen it myself multiple times.

      If you are a doc (as your username implies), you should know better. If you are not a doc, you shouldn’t imply you are when writing about medical topics, especially when you are wrong.

  11. tommo says:

    for all you wannabe lawyers and doctors don’t waste your time try to comment on this case. much of what has been said regarding summary judgement is correct. the REAL problem with these “reduced chance of success” type cases is that the claim for this cause of action does not even address whether or nor the “victim” would have survived BUT, that he wpould have had a better shot at it had blah, blah, blah been done, or not done. this is what you get when creative trial lawyers and receptive judges break bread together.

  12. […] wasn’t happy. Most everyone, WhiteCoat included (I think), agrees that it’s negligent to administer electrical […]

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