Liability issues for the death of Jahi McMath

Friday, January 3, 2014

Good afternoon:

I never did figure out why the comments were closed on yesterday’s post. Crane deserves the credit for correcting the problem. She republished the post without changing it and deleted the original. I have no idea why that worked, but I’m delighted that it did.

Many excellent comments and I hope y’all will continue commenting as the tragic circumstances engulfing Jahi’s family touch us emotionally and focus our attention on the fundamental question of identity

Who are we and what is consciousness?

In what sense are we alive, if we are not conscious?

Do we want our body to be kept alive by a machine when we can no longer be conscious?

If you do not want your body to be kept alive by a machine after your brain ceases to function, please consider making a written document expressing your intent so that it can be provided to your physician if you should be in that situation.

Cielo commented yesterday about Jahi’s cause of death. Since this is a law blog, I’m going to answer her question and assume for the sake of argument that death may be defined as absence of brain activity. Pursuant to that definition, Jahi is dead and she should be disconnected from life supporting equipment.

Here’s Cielo’s comment.

Also, you wrote: except to say that I believe the anesthesiologist may be liable for her death.” I would very much like to read your reasoning. Jahi made it through the surgery alive, conscious and wanting a popsicle. The complications began AFTER she was transferred to the ICU. Several things to remember that are NOT always mentioned in the news: Jahi was obese, had sleep apnea, uncontrolled incontinence and maybe diabetes. The tonsillectomy was NOT routine but complicated by the health issues as well as the fact that they ALSO removed additional sinus material. My personal belief is that Jahi fell asleep, had a sleep apnea episode, woke up coughing violently (I get occasional sleep apnea and it is very frightening to wake up unable to breathe), tore any number of internal sutures from the coughing, drowned on the blood draining to the lungs triggering a heart attack and then she died from being unable to get any oxygen. An autopsy could find the torn sutures UNLESS after 3 weeks, no such evidence could be found. I’ve read the body continues to heal. I’ve also read that the body begins to decompose, so I don’t know WHAT is happening inside the body right now. In either case, malpractice will be very difficult to prove. Were I on a jury of this case, I could easily see a tragic medical complication that was not caused by negligence or incompetence. Not every death is someone’s fault. Your thoughts?

My answer:

You may be right about her being OK until she suffered a sleep apnea episode in the ICU. Unfortunately for us, but understandable for the protection of Jahi’s privacy, the hospital records have not been released to the public. We need the records, our own experts to read and interpret them, and an opportunity to depose their witnesses under oath in order to determine her cause of death and identify who is responsible.

The problem for the hospital is that a 13-year-old girl died in the ICU after her tonsils and some excess sinus tissue were surgically removed. That result wasn’t expected and will have to be explained.

The legal doctrine of res ipsa loquitor may prevent the hospital from escaping liability by claiming that responsibility cannot be assigned to any particular person. The plaintiff, which probably would be her mother suing for wrongful death, would only need to show that she died while in their care and she would not have died unless someone was negligent.

I don’t believe there is any question about whether she died while in their care. Therefore, I will focus on what caused her death and whether it was a reasonably foreseeable event.

Under the circumstances you have described, death occurred in the ICU due to heart failure caused by excessive post-operative bleeding into the lungs from the surgically repaired area brought on by a fit of coughing and choking during a sleep apnea episode.

With all due respect, I am going to stick with my original best guess, which is to suspect the anesthesiologist. I suspect the anesthesiologist may not have inserted the endotracheal tube properly at the junction that leads to the two lungs or it may have become displaced during surgery resulting in an insufficient flow of oxygen to the lungs. Insufficient oxygen to the brain will cause brain death.

Alternatively, I suspect the surgeon may have nicked a blood vessel causing extensive bleeding that could not be stopped precipitating a heart attack.

I believe something went wrong during surgery or she would not have been placed in the ICU. She would have been intubated in the ICU, so the scenario you described is unlikely.

I do not believe the uncle who said she asked for a popsickle in the recovery room because she would have been intubated and unable to speak. I also believe she would have been taken directly to the ICU from the OR because she was in trouble or already dead and the ICU is better equipped to deal with an emergency than the recovery room.

Finally, I do not believe Jahi underwent a difficult surgery. On the contrary, I think it was an easy surgery and she should be alive today, but for negligent acts that occurred in the OR during surgery.

Liability in tort depends on the existence of:

(1) a duty to exercise due care to avoid injuring foreseeable plaintiffs;

(2) a breach or violation of that duty;

(3) injury to a foreseeable plaintiff; and

(4) injury proximately caused by the breach of duty.

Now, the analysis:

Jahi was a foreseeable plaintiff because she was a surgical patient and the surgeon who performed the surgery had a duty to perform it according to the medical standard of practice in his community. At this time, we lack sufficient information to conclusively determine whether he violated his duty, even though the episode of excessive bleeding suggests that he did.

We differ regarding when it happened, but even if you are right and it happened in the ICU, nurses are trained to deal with that problem and should have been able to stop the bleeding. If not, then the likely cause of the bleed was something that happened in the OR, not coughing or a sleep apnea episode since she would have been intubated.

The ultimate question is whether the cause of Jahi’s death was a reasonably foreseeable event and whether the hospital acted reasonably to prevent it from happening.

This case does not involve strict liability. The legal standard is negligence and proof of negligence requires evidence that it’s more likely so than not so (i.e., preponderance) that someone breached their duty to do something they were supposed to do and, but for that breach of duty, Jahi would not have died.

I think they are going to have a difficult time escaping liability, no matter how difficult the surgery may have been, because I doubt this surgery is considered to be risky and the ICU nursing staff should have been able to prevent her death.

This is our 831st post.