Speaker 1: You're listening to Your Practice Made Perfect; support, protection and advice for practicing medical professionals, brought to you by SVMIC.


J. Baugh: Hello everyone. And welcome to this episode of Your Practice Made Perfect. My name is J. Baugh, and I'm one of the senior claims attorneys at SVMIC. In this episode, we're going to review a closed claim. And we're calling this episode When Country Tough Isn't Tough Enough. And joining me today is another SVMIC claims attorney, Katie Smith.
 
J. Baugh: Katie, welcome to the show.


Katie Smith: Thanks J. I'm glad to be here.


J. Baugh: Well, it's good to have you here again. Maybe you could remind us, before we get started with the episode, how long you've been doing medical malpractice defense work?


Katie Smith: Sure. Well, I started practicing privately, as a lawyer defending, among other things, defending SVMIC insureds when they were sued. Worked in the private practice arena for about five years. And then I've been at SVMIC for over 15 now.


J. Baugh: And I've been at SVMIC for 21 years. So Katie and I have seen a lot of cases during that time. And we're going to talk about one of the closed claims today.


J. Baugh: Today, we'll discuss a plastic surgery case with some valuable lessons to be learned. Let's kick this off with an introduction to the patient and the physician.


J. Baugh: Here, we have a 58 year old male patient, Mr. Chet Stetson, who presented to the office of Dr. Fabian Starr looking to discuss liposuction. The physician, Dr. Starr, is a plastic surgeon who worked at Fabulous New You, a free-standing office that advertises aesthetic treatments and cosmetic surgical procedures that can be done under local anesthesia.


Katie Smith: Yes, Jay. The patient, Mr. Stetson, was a widower who had recently remarried. He wanted to pursue liposuction because, as he explained to Dr. Starr, he had always been overweight. And in his youth had weighed as much as 320 pounds.


Katie Smith: He had recently lost a significant amount of weight. Despite this weight loss, Mr. Stetson was still unhappy with the way he looked, especially with what he felt was his big belly and his love handles. He had heard the catchy advertisements by Fabulous New You and was interested in a particular liposuction procedure that promised to give him a thinner, more youthful shape.
 
J. Baugh: So Dr. Starr examined Mr. Stetson, and determined that the problem was not excessive abdominal fat but rather loose skin left behind after his weight loss. Dr. Starr counseled against having the liposuction procedure, but instead he recommended a different surgery that would remove the loose skin around his middle. This other procedure, though more invasive, would provide the thinner silhouette Mr. Stetson was seeking.


Katie Smith: So the initial procedure Mr. Stetson came in for has now become a more invasive procedure.


Katie Smith: According to Dr. Starr, he remembers discussing the details of the more invasive procedure with Mr. Stetson, including the necessity of arranging for a driver to take him home afterwards. Mr. Stetson agreed, and did sign a form which indicated that if he took sedatives he absolutely must have a driver.
 
J. Baugh: But here is where things take a bit of a turn. Dr. Starr recalls that Mr. Stetson assured him that he was country tough and would not need sedatives, and therefore he could drive himself home. The visit ended with the understanding that Dr. Starr would use only local anesthetics and Mr. Stetson would not be sedated in any way.


J. Baugh: Based on this understanding, Dr. Starr decided to move forward with the surgery. Later, with the benefit of hindsight, Dr. Starr realized that he should not have agreed to perform the procedure with the expectation that only local anesthetics would be used. It was against his medical judgment and an assurance he should not have made.


Katie Smith: Although retrospectively, Dr. Starr realized that he should not have agreed to perform the surgery with the expectation that only local anesthetics would be used, he did agree to this.


Katie Smith: And so on the morning of the scheduled procedure, Mr. Stetson arrived without a driver. He confirmed to the staff that he intended to decline any sedative-like medication during the surgery. In fact, he refused the pre-operative Valium that was offered to him. The surgery went forward, starting at 9:15 that morning, utilizing tumescent solution containing lidocaine and epinephrine.
 
J. Baugh: So the patient has declined the pre-operative Valium and the surgery begins as expected. However, approximately an hour into the surgery, Mr. Stetson experienced some pain and anxiety. In response to this, Dr. Starr ordered that a dose of Versed syrup be given. It is alleged that a second dose of Versed syrup may have been given during the surgery, but was not charted. An important point to make here and something for our listeners to remember, is that every step should always be documented.
 
J. Baugh: So, now, when the surgery is over, around noon, the patient was moved to the holding area to recover. The staff arranged to have lunch delivered. And he ate his lunch without incident. During this time, it was noted that Mr. Stetson emphasized to the staff that he needed to leave the office right away to beat the traffic he would encounter on the way to his home, in a rural part of the state 90 miles away.


Katie Smith: So here we are, Mr. Stetson still has no driver present. He has a 90 mile drive to go home. And although he seems to be eating without incident, he was given Versed during the surgery.


Katie Smith: Dr. Starr looks in on Mr. Stetson a couple times while he was eating his lunch. He advises him that he should not drive so soon after surgery. And he offered Mr. Stetson some alternative solutions, such as offering to call him a cab, have a staff person drive him home, or help make other arrangements to see that he got safely home.


Katie Smith: Mr. Stetson declined all these offers, commenting that he was tough enough to drive. The staff noted, a short time later, that Mr. Stetson had left the facility when no one was watching.


J. Baugh: So the patient leaves the facility when no one was watching. No discharge order was written and no AMA, or against medical advice, form was completed. It would have been helpful if Mr. Stetson had been asked to sign an AMA form, acknowledging his failure to follow medical advice and the risks of such behavior, at the point when he declined the offers for assistance in getting home safely.
 
J. Baugh: During his drive back home, shortly after 3:00 in the afternoon, Mr. Stetson recalled that he suffered a sharp pain in his abdomen, causing him to black out. His vehicle rolled over and wrecked, causing multiple orthopedic and spine injuries. His injuries include multiple acute bilateral rib fractures, acute dehisced incision, comminuted acute C2 fracture, acute right shoulder dislocation with interior glenoid fracture, acute C1 ring fracture, acute right-sided pneumothorax, right vertebral artery dissection, and transverse process fractures of L2 and L5.
 
J. Baugh: He was transported by Life Flight to Benevolent Hospital and admitted into the ICU. After approximately one week of treatment, Mr. Stetson was discharged to a rehab hospital where he received therapy for approximately two weeks. He was then discharged in the care of his wife.


Katie Smith: As our listeners will probably predict, Mr. Stetson then sought representation from a well-known plaintiff's attorney. A lawsuit was filed, and demanded a large amount of compensatory damages as well as punitive damages, for alleged grossly negligent and reckless medical care. Dr. Starr, in kind, was represented by experienced defense counsel.


Katie Smith: After three and a half years the case went to trial. And the jury found in Mr. Stetson's favor. A large compensatory damage award was handed down by the jury. And the jury also determined that punitive damages were warranted, with the amount to be determined at a separate hearing.


Katie Smith: However, before the punitive damages phase of the trial, a confidential settlement was reached that resolved the case.
 
J. Baugh: One of the most common points in this story is that it is well-known that it is foolhardy to drive yourself home after surgery. This is true, no matter how tough the patient may see themselves.
 
J. Baugh: In this scenario, the practice would have been wise to cancel the procedure when they realized that the patient did not bring someone to drive him home. The surgery should have been rescheduled for a time when he could arrange for a driver to be with him. While they could not control the fact that the patient left without their knowledge, they could control whether the procedure went forward at all that day.


Katie Smith: I agree, Jay. I think that's the biggest takeaway point in the case. Dr. Starr could have avoided the lawsuit on the front end by refusing to perform the surgery unless, or until, the patient had a driver.


Katie Smith: Also, Dr. Starr could have taken some steps to make this situation more defensible while it was unfolding. Good documentation would've been very helpful to the defense of this lawsuit. It would've been ideal to have documented a pre-procedure conversation reminding the patient, again that morning, that he would not be able to drive himself home if he required more than local anesthesia during the surgery.


Katie Smith: Also, documenting the alternative transportation solutions that were discussed with the patient would've been helpful. As would, obviously, getting the patient to sign that AMA form. Even if the patient snuck out without the staff's knowledge, it's a good idea to have had a thorough note documenting that departure. Thorough documentation is always helpful when defending medical care.


Katie Smith: And finally, Jay, this case strikes me as a situation where the physician really needs to save the patient from himself. Dr. Starr, not Mr. Stetson, was in the best position to know how unrealistic the expectation was to tolerate surgery with only local anesthesia.


Katie Smith: Sometimes the best way to take care of a patient is to point out when a patient has unreasonable expectations concerning the medical care. It can definitely be an awkward conversation, but it's an important one. And it helps to reveal those patients who have beliefs or expectations that are so different from the healthcare providers, that the healthcare provider really isn't able to continue caring for the patient.
 
J. Baugh: Well, we certainly hope that our listeners are able to take home some tips from this closed claim. And we hope that those tips will help them in their practice. And I would like to, once again, thank Katie Smith for being with us today.


Katie Smith: Thanks J, I've enjoyed it.


Speaker 1: Thank you for listening to this episode of Your Practice Made Perfect. Listen to more episodes, subscribe to the podcast, and find show notes at svmic.com/podcast.


Speaker 1: The contents of this podcast are intended for informational purposes only and do not constitute legal advice. Policy holders are urged to consult with their personal attorney for legal advice, as specific legal requirements may vary from state to state and change over time. All names in the case have been changed to protect privacy.