$6,500,000 Recovery in Wrongful Death Intubation of Patient With Pneumonia, Sepsis & ARDS
Daryl L. Zaslow of Eichen Crutchlow Zaslow, LLP (Edison, Red Bank and Toms River), obtained a $6,500,000 settlement on behalf of the Estate of a 53 year old woman who died on March 31, 2015, 3 days after being admitted to St. Peter’s University Hospital for pneumonia and sepsis. At the time of her death, Plaintiff left surviving a husband and three adult children. Although Plaintiffs settled part of the case against several defendants at a mediation before Maurice J. Gallipoli, A.J.S.C. (Ret.) in August 2019, the settlement against the remaining defendants was reached the week before the trial was to commence on December 2, 2019 and an Order approving the final allocation and distribution of funds was entered by the Honorable James Hyland, J.S.C on April 23, 2020.
Marie Horvath was a 53 year old woman, who had been sick for 5 days with fever, headache, cough and confusion, when she presented to St. Peter’s University Hospital (“St. Peter’s”) via ambulance on March 28, 2015. The medical records document a diagnosis which included multipolar pneumonia, hypoxia and septis. Based on the history, it was felt that she had a community-acquired pneumonia (CAP). Ms. Horvath subsequently developed progressive hypoxia and tachypnea with radiographic evidence of acute respiratory distress syndrome (ARDS). ARDS is a rapidly progressive disease occurring in critically ill patients. The main complication in ARDS is that fluid leaks into the lungs making breathing difficult or impossible.
Despite initially being treated with a 100 % non-rebreathing mask, she remained hypoxic and was switched to non-invasive positive pressure ventilation or BIPAP (100 %), which ostensibly provided only temporary improvement. On March 31, 2015 at 12 a.m. she had oxygen saturations in the low 80s and blood gas results from 12:48 a.m. revealed a P02 44, a PC02 of 38 and a pH of 7.48. At approximately 3:30 a.m. of March 31, a Defendant who was specialist in Critical Care and Pulmonology Medicine was covering the critical care unit, made the decision for an elective, non-emergent, intubation so that Mrs. Horvath could be mechanically ventilated. Consistent with routine practice at the hospital, the Defendant in-house Certified Registered Nurse Anesthetist or CRNA responded to the call for intubation and arrived in the ICU sometime around 4:20 am. Shortly after the endotracheal tube was placed by the CRNA Ms. Horvath developed bradycardia and cardiac arrest. A code was called, however, Ms. Horvath was not able to be resuscitated and expired at 5:10 a.m. on March 31, 2015.
Plaintiffs’ experts maintained that Critical Care specialist waited too long to order the intubation of Ms. Horvath and that the standard of care required intubation immediately after blood gas results were completed at12:48 a.m. According to Plaintiffs experts, Ms. Horvath had not improved with any of the antibiotics given, she had failed to stabilize with escalating treatment for hypoxemia, and she was clearly heading to physiological exhaustion and cardiopulmonary arrest. By delaying the order for intubation, Plaintiffs maintained Ms. Horvath’s physiologic reserve was more likely to deteriorate during the intubation process and thus she was more likely to sustain cardiac arrest.
Plaintiffs’ experts also opined that the CRNA deviated from the accepted standards of care by not properly inserting the endotracheal tube into the trachea, but rather, improperly placing the endotracheal tube in Ms. Horvath’s esophagus. After failing to properly position the endotracheal tube, Plaintiffs’ experts maintain the Defendant compounded that error by failing to timely appreciate signs that the endotracheal tube was not in the correct position. As per this issue, the CRNA testified that she believed the endotracheal tube was in the proper position because she observed condensation in the tube and that breath sounds were confirmed by 4 other medical care providers. Plaintiffs’ experts were critical of the CRNA for relying on these subjective factors and that she should have placed more emphasis on the fact that the end tidal C02 monitor did not appear to change colors after intubation.
The defense experts argued that this was an elective, not emergent intubation. In such circumstances, they maintained that the decision whether, and when, to electively intubate a patient is a “judgment call” and that when the specialist decided to intubate Ms. Horvath was lucid, conversant and fully capable of discussing the pro and cons of intubation. As such, they argued the Defendant’s decision to intubate was not delayed. With respect to causation, they opined that Ms. Horvath suffered from a non-responding pneumonia – whether community or healthcare associated – with persistent deterioration despite treatment with several different antibiotics. As such, they maintained she had severe ARDS and she had a high risk of morbidity and mortality.
The case was settled for $6.5 million.
Read the write-up by the New Jersey Law Journal here