Publication Date: February 2017
Author: Lee Tucker
Categories: Medical Negligence, CLE, Case Management, Medical Issues
On December 25, 2013, my client, a 49-year-old newspaper courier, went into the ER at a medical facility to seek medical treatment for his cough and bad cold that had been lingering for a week or so. While at the ER, he was diagnosed with pneumonia and released with antibiotics. Two days later on December 27, he returned to the same facility with worsening conditions and eventually was admitted into the intensive care unit with acute respiratory failure (ARDS) and bilateral pneumonia. On December 29, the following day, it was very clear that my client was having trouble breathing normally due to his worsening pneumonia. The pulmonologist met with my client and his wife to recommend that he be placed on a ventilator to assist in his breathing and healing. After careful consideration with his wife, he was put on a ventilator by the treating pulmonologist at that facility. Hospital nurses placed a decompression tube into my client’s stomach to assist in taking out carbon dioxide pumped into his stomach from the ventilator. After two full days in the ICU, on December 30, 2013, the hospital nurses inserted a feeding tube into m y client throat which was confirmed by a radiologist as properly placed into his stomach. At 1130am, the feeding tube was actually placed into my client’s left lung. The radiologist did not study the hybrid chest/abdominal x-ray carefully enough and failed to notice the feeding tube in my client’s lower left lung. As a result, at around 1pm the hospital nurses started feeding my client with Promote (enteral feedings), water, and medicine. All of these instillations were meant to be digested in the stomach to assist my client in his healing.
The tube feedings continued to be dumped into my client’s left lung for at least 6 hours. Eventually, the hospital nurses were trying to figure out why my client’s vitals were getting increasingly worse throughout the day, including rapid heart rate, rapid and labored breathing, and fevers. In addition, witnesses observed my client gagging, coughing and convulsing during the time the tube feedings were going into his left lung. At 630pm, when my client’s condition became a medical emergency, the treating pulmonologist ordered a chest x-ray. At 730pm, the chest x-ray was read by another radiologist who confirmed the feeding tube was in my client’s left lung. The radiologist called the ICU nurses assigned to my client’s room and alerted them of the tube in my client’s left lung.
All of this was occurring in front of my client’s spouse and his two ad ult children. Hospital nurses rushed out of the room to get the pulmonologist when the nurses were called by the radiologist who told them the feeding tube was in his left lung. At 8pm, the pulmonologist did an emergent bronchoscopy to clear my client’s airway and lung that was filling with tube feedings, inflammation, and pus. Approximately 8 to 9 ounces of feedings were pumped into my client’s lower left lung. Although he temporarily stabilized after the bronchoscopy, his condition significantly worsened over the next several days. The chest x-rays showed the pneumonia and consolidation (cloudy patches of white on a chest x-ray) continuing to worsen in the area where the feedings were placed. On December 31, my client’s labs showed a massive inflammatory response with high white cell counts and kidney failure with abnormal creatinine levels. After fighting for his life between December 29 and January 4, 2014, my client passed away in the ear ly morning hours of January 5, 2014 with his family present.
We filed suit against the hospital, radiologist, the radiology group, the pulmonologist and the pulmonology group. We were extremely fortunate to have the best medical experts assisting us in understanding pulmonary medicine, nursing standards and procedures, and radiology. We retained two ICU nurses who specialized in placing feeding tubes, another nurse who specialized in audit trails of medical records, a radiologist, two pulmonologists who specialized in critical care, an infectious disease expert, and a pathologist. All of these experts assisted immensely in educating us in how the tube feedings were the proximate cause of my client’s death although our client was suffering from acute respiratory failure and on a ventilator before the feeding tube error.
Considering the admitted medical error, there were attempts to res olve the case early on within 8 months of my client’s death; however, it became very clear that the defendants did not feel their collective negligence was the proximate cause of my client’s death nor did they feel the case was worth very much. Three very well known Seattle and Tacoma based defense medical malpractice firms appeared for each defendant and they worked very closely together defending the case up until the case eventually resolved in March 2016.
I had the unique opportunity to work with Nick Rowley and his firm, Carpenter, Zuckerman, and Rowley. In January 2015, as a result of serendipity, I knew someone who was very good friends with Nick Rowley and I was able to associate with Nick Rowley and his partner Robert Ounjian after flying down to Los Angeles to review the case with them. I also had the privilege to graduate from the Gerry Spence Trial Lawyers College in September 2015. I spent about a month focused on just this case while at the TLC. I learned a great deal about the story of the case and how to best work up the case throughout discovery. The case changed direction after I came back from the TLC and conducted key discovery depositions of each defendant.
At the defendant radiologist’s discovery deposition, I received an admission from the defendant radiologist that the he failed to fully appreciate and study the hybrid chest/ abdominal x-ray that clearly showed the feeding tube in my client’s lower le ft lung.
During discovery, there were at least 22 depositions taken of medical providers, ex perts, and friends and family of my client in a matter of three and a half months. The primary defense was that our client was so sick with ARDS that he was likely going to die regardless of whether he was tube fed with 8 to 9 ounces of tube feeds directly into his left lung for 6 hours. Defendants’ expert witness in pulmonary medicine and critical care testified at his deposition that a patient could live even if a liter of tube feeds and fluid were instilled into a patient’s lung. This defense seemed unbelievable but nonetheless it was made.
All of plaintiff’s experts, especially the three who worked in critical care, strongly felt and testifi ed at their depositions that the tube feeds into our client’s lung was the proximate cause of his death. They felt this way because the medical evidence and the treating doctors documented in the x-rays and the reports that
my client had worsening consolidation (cloudy patches) in his left lung exactly where the tube feeds were instilled. In addition, plaintiff’s experts testified that the x-rays continued to get worse each and every day because the tube feeds caused an additional inflammatory response localized in my client’s left lung. The inflammatory response in my client’s lung ignited a systemic response in my client’s right lung as well as the rest of his body causing his kidneys to fail, his cardiac system to be overworked, and ultimately his death.
Regardless of the overwhelming medical evidence against all the defendants and the strong testimony of plaintiff’s experts during their depositions, the defendants’ law firms collectively filed fifteen pre-trial motions prior to the final mediation, three of which were motions for summary judgment and motions to dismiss plaintiff’s key experts on standard of care and causation. Throughout the case, I discovered very quickly that the deceased was clearly loved by his family, friends and anyone who entered his life. We created a day in the life video and interviewed a number of family members and friends to show how much our client was loved and how much he meant to so many people in the community. He was studying to become a psychologist and family therapist while operating a small newspaper courier business. He was enrolled in a master’s program and had almost completed his schooling at the time of his death. Our experts believed that he would have earned $50,000 to $70,000 a year had he become a family therapist. So many people were touched by his wisdom, perspective, love, and understanding. We represented the personal representative of the estate, who was the spouse of the deceased. There were four statutory beneficiaries, who were all adult children. Two of the adult children were from a prior marriage and the younger two adult children were step-children of the deceased and children of the surviving spouse. After filing suit in early September 2014, the case finally resolved in March 2016 for a confidential amount. None of defendants’ motions were ever ruled on because the case settled.
Lee Tucker, EAGLE member, practices in Seattle, Washington and represents victims of medical malpractice. He has been focused primarily on medical malpractice and patient rights for the last several years. He is the principal at The Tucker Law Firm and a member of the Washington Association of Justice and American Association of Justice. He can be reached by email at firstname.lastname@example.org or 206- 790-5842.