Dr. `pulls' tube: pt. takes 1 1/2 hours to die.

BRIAN BRADLEY, A PATIENT AT UNIVERSITY HOSPITAL OF CLEVELAND, WAS TREATED BY SEVERAL PHYSICIANS. After the death of the patient, allegedly as a result of the failure to timely diagnose and treat the patient's bacterial meningitis, the patient's personal representative brought suit against the hospital and the physicians, two of physicians, Dr. Miguel Ayup and Dr. Dariush Saghafi, collectively referred to as the UH defendants. The focal point of the plaintiffs claim was that after the patient was transferred to University Hospital on a mechanical ventilator, Dr. Ayup negligently ordered the removal of the patient's breathing tube, which proximately caused the patient's death. The plaintiff also sought damages for conscious pain and suffering alleging that in the one and one-half hours between the allegedly wrongful extubation and subsequent reintubation, the patient struggled to breathe and was suffocating because of inadequate oxygenation. The case was tried before a jury. At the close of the plaintiffs case, the trial court ordered a directed verdict in favor of the UH defendants on the plaintiffs conscious pain and suffering claim. The trial court also granted a directed verdict in favor Dr. Saghafi. The trial court also denied, inter alia, University Hospital's and Dr. Ayup's motions for directed verdicts regarding the plaintiff's wrongful death claim. A jury subsequently returned a verdict in favor of the remaining defendants finding that one physician defendant had not breached the applicable standard of care and that Dr. Ayup's negligence was not the proximate cause of the patient's death. Following the jury trial, the plaintiff filed a motion for a new trial and/or judgment notwithstanding the verdict (JNOV). The trial court denied the motion. The plaintiff appealed.

THE COURT OF APPEALS OF OHIO REVERSED THE JUDGMENT AS TO THE HOSPITAL AND DR. AYUP. The court held, inter alia, that the trial court erred when it instructed the jury: "if the jury finds that [the patient] had a less than 50 percent chance of survival when he arrived at University Hospital, then the verdict must be for University Hospital." However, the court noted that a decision of the Supreme Court of Ohio in a similar case involving a patient with a less-than-even chance of recovery or survival is not required to adopt the loss-of-chance theory in a medical malpractice suit, if the plaintiff can prove a direct causal relationship between the defendant's negligence and a patient's death. Put another way, even in a case in which a patient has a 50 percent chance of survival, where a plaintiff can demonstrate that specific acts of a defendant caused the ultimate harm, the plaintiff may recover full damages. The fact that a patient's chances of survival are 50 percent or more allows a patient to recover the total amount of damages which can be proved to be the direct and proximate result of a defendant's negligence. There is no pro rating or apportionment of damages tied to the percentage of a patient's chances of survival in such cases.

THE COURT FOUND THERE WAS SUFFICIENT EVIDENCE THAT THE PATIENT WAS NOT COMPLETELY UNCONSCIOUS DURING THE ONE AND ONE-HALF HOURS BETWEEN EXTUBATION AND DEATH. Accordingly, the court ruled that the trial court erred in granting the defendants' motion on the grounds that there could be no recovery for conscious pain and suffering since the patient was unconscious. The facts proved otherwise. The court found that there was sufficient evidence to demonstrate that the patient was not completely unconscious during the one and one-and-half hours in question. The court noted that Rebecca Gemmell, the patient's nurse in the Intensive Care Unit, testified that immediately prior to his extubation, the patient was awakening from sedation, and his pupils were "brisk and reactive." In addition, the medical records reflected that Nurse Gemmell rated the patient's level of consciousness at "two," which means that the patient was nonresponsive to verbal stimuli but was responsive to pain. Nurse Gemmell specifically testified that the patient was only in a "light coma" and "not completely comatose." Given this evidence, reasonable minds could reach different conclusions as to whether the patient was conscious and, therefore, whether or not the plaintiff could recover for the patient's pain and suffering in the one and one-half hours prior to this death was a question of fact for the jury to resolve. Accordingly, the court reversed the judgment of the lower court and remanded the case for further proceedings against University Hospital and Dr. Ayup. Editor's Note: Should any disciplinary action have been taken against Dr. Ayup? Bradley v. University Hospital of Cleveland, 2001 WL 1654762 N.E.2d -- OH

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for nearly 40 years, he concentrates in health care law with the Providence, R.I., firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Reagan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers and Marquis Who's Who in American Law.