Verdict coming soon in malpractice trial
The actions of medical professionals on the night of March 20, 2015, are being scrutinized in a medical malpractice lawsuit.
Now on Day Seven, the trial is emotional, eliciting tears from the accused anesthesiologist and his patient as well as members of the audience.
Jill Lubing’s attorneys are arguing that David Tomlinson of Grand Anesthesia Group didn’t follow safety protocols or the proper standard of care to avoid local anesthetic systemic toxicity and protect Lubing from a mild traumatic brain injury. He says emphatically that he did.
Attorneys are homing in on the 10 to 15 minutes of intense activity around 8:50 that night as Tomlinson began administering a regional nerve block before wrist surgery and Lubing demonstrated seizure activity and went unconscious.
The timeline of what happened next is disputed: when additional help was requested, who administered various lifesaving measures and at what time. There are many recollections, slight variations and different interpretations of the few minutes that keep being replayed in front of 14 jurors in Teton County District Court.
Members of the local medical community who have testified include emergency room doctor AJ Wheeler, medical director of the emergency department Jeffrey Greenbaum, orthopedic surgeon Rafael Williams, nurse Deb Falk, nurse and Director of Medical Surgical Services Mary Ponce, nurse anesthetist Shawn Wright and former hospitalist Gerald Katz. National experts have also been called by both sides.
The trial is expected to wrap with a verdict by Friday. Judge Steven Sharpe from Laramie County praised the attorneys for their time management on Tuesday and said jury deliberations would likely be “ahead of schedule.”
Most physicians will end up in a malpractice lawsuit at some point. The 2007-2008 Physician Practice Information survey found that more than 60.5 percent of doctors older than 55 have been sued at least once.
But it’s rare for a medical malpractice trial to make it to court. 2012 research in the peer-reviewed medical journal JAMA Internal Medicine found that of more than 10,000 malpractice claims between 2002 and 2005, about 55 percent resulted in an actual lawsuit. Of the litigated claims, more than half were dismissed by the court and less than 5 percent ended up being decided by a trial verdict.
The same study found that when there was a verdict it went in favor of the doctor 80 percent of the time. Analysis of malpractice claims for 20 years in the peer-reviewed medical journal Clinical Orthopaedics and Related Research found that physicians won 80 to 90 percent of jury trials with weak evidence of medical negligence, approximately 70 percent of the borderline cases and 50 percent of trials in cases with strong evidence of medical negligence.
She is feeling ‘fried’
In a sometimes quavering voice Lubing told the jury how her life has been since a horseback riding fall and regional anesthesia years ago.
“It feels like you put your finger in a socket and you’re fried,” Lubing said. “It’s really hard to describe, but it’s like everything is kind of fried. You don’t function the same.”
She said she likes to think of herself as a “pretty stoic person, and I’m not really crazy about letting everybody know what I feel like. Then I just feel like all the sudden everybody’s going to look at me differently.”
She used the words “dullness,” “blank” and “a flat zone” at various times to describe her mental state.
“I thought I was crazy because I’m talking to myself all the time,” Lubing said. “I can’t get rid of it. The only way to get rid of it is to sleep.”
The first month or so after the surgery, she said, she slept a lot, randomly fell over, had chest pain, was dizzy and generally felt weird and “super out of it.” She isolated herself socially because in the first year she had poor speech. She said she felt like she was in second grade, “so I didn’t want to be around people because it makes you feel really stupid.”
Her balance and her speech appear to have improved in recent years. But she said she has no adrenaline — “A deer can run out in front of me and I get nothing. My heart doesn’t race.” — and struggles with short-term memory loss and depression. Now she’s on medication, and she said she’s trying to cope with her “new normal.”
In the days surrounding her testimony, Lubing’s attorney Rob Stepans also drew attention to a lack of recorded vital signs earlier in the evening, a missing anesthesia consent form and other forms that appeared to be incomplete or missing pertinent information. Tomlinson and his legal counsel disputed or attempted to explain those discrepancies.
Discrepancies between witnesses occurred repeatedly in efforts to nail down a timeline. Tomlinson said he disputes “most of it” when referring to Ponce’s chronological note.
Ponce said that her timing might be off by a minute here or there but that she did check her observations with two other hospital employees whose sole jobs are to record such events.
“In those high-adrenaline situations you don’t look at your watch. ... You initially help the patient,” Ponce said. “Patient care always comes first.”
The doctor’s defense
Tomlinson said some things are fuzzy with time but others are “etched” into his brain.
“You can imagine doing something over the course of your career for 15 years and being trained to watch for this every time, and then all the sudden it happens to you and you’re in a hospital with not as much backup as some other facilities,” he said, pausing to collect himself. “I knew I needed to act quick.”
He said he’d done the block more than 2,500 times but this was the first time he’d seen signs of local anesthetic systemic toxicity.
“As an anesthesiologist you’re trained over and over again to intervene, and I did,” Tomlinson said.
Tomlinson said that at the time he was concerned for his patient, was affected by the events and wasn’t thinking about possible litigation, including when he was recording a dictation of the procedure the next morning.
That procedure note was the focus of much examination Tuesday. Tomlinson grew frustrated when certain wording was questioned.
“I obviously did not sit down and craft this three years ago so you guys could chop it up,” he said.
On the stand Tomlinson went through a checklist made by another anesthesiologist on standards of care for the procedure. He explained his process for avoiding veins, what he did or did not do and why, whether medical literature supported his actions (yes, he said), what other local anesthesiologists do (the same as him and what he was trained to do.
Though Tomlinson said patient safety is “high on the list” he disputed that it was the top priority with Stepans, saying certain medications are toxic by nature and wouldn’t be used if safety was the No. 1 concern.
“I think it’s impossible to ensure outcomes, if that’s what you’re asking,” Tomlinson said.
A surgeon’s vote of confidence
Dr. Williams said the incident in March 2015 didn’t result in him having any concern about Tomlinson continuing to do nerve blocks on his patients.
“I’d happily have him do a regional block on any of my patients,” he said. “I’d have him do it on me or my family.”
Defense attorney Jeff Brinkerhoff used past medical records to cast doubt on some of Lubing’s symptoms. He asked her why depression wasn’t noted to a variety of treatment providers sooner. He also suggested that she saw a neuropsychologist only in light of the pending litigation.
“I’m just still hopeful that things will change and I get to be the person I was,” Lubing said. “I think I was just in super denial.”
Brinkerhoff is also building the case that Lubing’s brain injury was caused by her fall. Despite the early signs of a black eye and some abrasions on her face, Lubing said she didn’t hit her head or lose consciousness.
Brinkerhoff had Lubing talk about previous instances that might have caused underlying brain damage years ago, like walking into a glass door and being kicked in the eye by a horse. He also questioned other medical records and observations from March 20, 2015, and shortly thereafter.
For example, elevated levels of the troponin protein in the blood could be interpreted to mean a sign of heart failure — or not. A broken rib could be from the fall, suggesting its severity and potential to cause head trauma, or it could be from the CPR performed at the hospital. There are disputed accounts of how many seizures Lubing had. Whether or not she went into cardiac arrest is also in question, since it was treated as such.
“I didn’t have the luxury of whether or not it happened; I had to assume the worst,” Tomlinson said. “I was there with Mrs. Lubing at 9 o’clock on a Friday night. I had to assume she had cardiac arrest. In retrospect, my opinion is that she did not.”
— Cody Cottier and Emily Mieure contributed to this report.