Brain Injury and Medical Malpractice

The prevalence of brain injury in the United States is alarming as it is the second leading cause of disability in the country. Often referred to as the silent epidemic, approximately 3.17- 5.3 million Americans suffer from traumatic brain injuries, another 4.7 million have brain injuries from strokes, and another 500,000 have cerebral palsy (brain injury due to an event of oxygen deprivation). Causes of brain injury that may give rise to a medical malpractice lawsuit are further described below: 

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Brain Injury from Birth: a medical malpractice lawsuit may arise may when a child's brain is negligently deprived of oxygen during pregnancy, labor and delivery. This may result in the child later developing cerebral palsy, mental retardation, seizures, blindness, deafness, and learning disabilities. Oxygen deprivation that injures a baby's brain may arise from any of the following events: 

*Compression of the umbilical cord during delivery

*Maternal Infection present during the pregnancy or delivery

*Placental abruption or uterine rupture prior to birth

*Maternal high blood pressure during the pregnancy (preclampsia)

*Breeched vaginal position of the baby (feet first rather than head first)

*Improper administration or doasage of epidural or labor inducing drugs during the delivery

*Failure to timely perform an emergency c-section

*Fetal macrosomia (oversized baby) unable to navigate the birth canal 

Brain Injury in Adults and Children: a medical malpractice lawsuit may arise as a result of errors in diagnosis and treatment of a serious medical condition. A few of the causes of brain injury in children and adults that may involve medical malpractice include: 

*Medication errors

*Anesthesia errors

*Surgical errors

*Radiology errors 

*Emergency room errors

*Delay in diagnosis/treatment of heart attack or cardiac arrest

*Delay in diagnosis/treatment of a stroke, aneurysm, or blood clot

*Delay in diagnosis/treatment of meningitis or encephalitis

*Delay in diagnosis/treatment of a spreading infection or abscess

*Delay in diagnosis/treatment of internal bleeding

*Delay in diagnosis/treatment of hydrocephalus 

*Delay in diagnosis/treatment of diabetes/diabetic coma/insulin shock

In addition to the above mentioned causes of brain injury, many other errors involving patient treatment and care may give rise to a lawsuit.  One of the most common causes occurs when a hospital patient or nursing home patient falls (due to inadequate protective measures) and the patient suffers a traumatic brain injury.  In fact, falls are the leading cause of traumatic brain injury in our country surpassing even motor vehicle accidents. For a detailed guide to the incidence, prevalence, and epidemiology of brain injury, see The Essential Brain Injury Guide prepared under the auspices of the Brain Injury Association of America.     

Heart Defects In Newborns

Heart defects in newborns affect approximately 8 out of every 1000 births.  Causes can include genetic factors, such as those found in Down’s syndrome, or factors due to the developing baby’s environment. Certain medications, such as Paxil (Paroxetine), Zoloft (Sertraline), Wellbutrin (Bupropion), or Prozac (Fluoxetine) may be associated with cardiac birth defects in the babies of mothers who took these medications when pregnant. While some heart defects may only slightly affect a child’s quality of life, others can be very serious and may require surgical correction. Although causes of many heart defects are not known, improvements in prenatal diagnosis has led to better management and outcomes for those babies affected by these conditions.

The most common way to diagnose a cardiac defect prenatally is by sonogram. Many obstetricians order a screening sonogram for their patients during the 16th to 20th week of pregnancy. Part of the standard practice for the sonographer is to identify the four chambers of the baby’s developing heart.

If the four chambers are not seen, or appear abnormal, a more specialized test, called a fetal echocardiogram may be ordered. This test involves a more detailed sonogram examination of the developing baby’s heart. Abnormalities can be further evaluated by this test method.

There are many different cardiac anomalies that affect newborns. Only three (3) will be discussed here:

Ventricular Septal Defect (VSD)- refers to a hole between the ventricles, the two lower chambersof the heart. The mixing of the oxygenated and deoxygenated blood through the defect can cause symptoms. Sometimes, a small VSD may close up on its own; sometimes surgery is required.

Atrial Septal Defect (ASD)- involves a hole in the wall separating the atria, the upper chambers of the heart.

Pulmonary Stenosis- occurs when the pulmonary artery that leads from the right ventricle to the lungs is narrowed. This can obstruct this crucial bloodflow out of the heart and can cause the right ventricle to become over developed and enlarged in trying to overcome the obstructive narrowing.

If proper prenatal testing was not done, or if testing was not read or interpreted properly, medical malpractice may have occurred.  Allegations of medical malpractice may include a negligent delay in diagnosis and/or inadequate surgical treatment and care of the newborn's heart defect.   Lawsuits may also result if a baby was injured by medications used by the mother. Cardiac defects can cause serious health problems in the child and may also involve major surgery for correction. In addition, complications can occur due to the defect, especially if undiagnosed. It is very important that women at risk for having a baby with a heart defect have appropriate screening tests done. Risk factors for congenital heart defects may include prenatal exposure to the medications listed above. Also, factors such as a sibling or family history of congenital heart defects may warrant increased surveillance and testing during the pregnancy.

Leg Amputation and Medical Malpractice

Amputation is the surgical removal of all or part of an extremity. The most common amputation surgery is above or below the knee.  The indications for leg amputation include severe trauma, significant tumor in the bone or muscle, lack of blood circulation due to peripheral arterial disease, worsening or uncontrollable infection, failed management of acute compartment syndrome, failed management of Charcot’s degenerative osteoarthropathy, or debilitating extremity paralysis from infection or pressure-related complications. Failute to timely diagnose and treat infection, tumor, pressure sores, vascular disease, compartment syndrome, and Charcot's all may result in the unneccessary amputation of a leg and give rise to allegations of medical malpractice against negligent health care practitioners.  

iStock_000026640818XSmall.jpgThe amputation procedure varies depending on the extremity undergoing the operation. To determine the operation site and the amount of tissue to remove, the surgeon relies on the following factors: the patient’s pulse, skin temperature, areas of reddened skin, and sensitivity to touch in the affected extremity. The presence of a palpable pulse proximal to the level of amputation is a positive predictor for successful healing; however, the absence of a pulse does not necessarily reflect future wound healing failure. The level of the amputation is based on the extent of the damaged tissue, the healing potential of the area, and the rehabilitation potential of the patient. In addition to a thorough clinical examination, objective tests such as ankle pressures, toe pressures, transcutaneous oxygen measurements, and skin perfusion pressures are useful.  

The preoperative evaluation and preparation involves medical risk assessment, nutrition assessment, prosthetic and rehab consultation, and possibly a psychological consultation. The diseased tissue is removed along with any crushed bone and the maximal amount of healthy tissue is left behind. The blood vessels and nerves in the surrounding area are sealed off. Following the amputation, the site can be left open due the possibility of further amputation or covered with skin flaps and closed. The remaining muscles in the area are shaped so the end of the limb can be fitted for prosthesis, also known as an artificial limb. 

Thromboprophylaxis is recommended for all patients undergoing major lower extremity amputation because patients are at high risk for thromboembolism, the blocking of a blood vessel by a particle that has separated from a blood clot at the formation site. Antibiotic prophylaxis is typically recommended within one hour of skin incision for lower extremity amputation due to high risk for surgical site infection.

Generally, the patient undergoes physical rehabilitation soon after surgery and practice with the prosthesis can begin 10-14 days after surgery. The patient’s postoperative outcome is dependent upon preoperative functional status, comorbidities, and the level of amputation. Wound healing must be monitored and dressing changes performed. Patients with advanced diabetes, significant heart disease, or serious infection are at a greater risk of complications from the procedure. Possible complications include infection, joint contracture, necrosis, deep vein thrombosis, pulmonary embolism, hematoma, and wound opening. In addition, patients may experience phantom pain, a sense of pain in the amputated limb described as burning aching, or electric. Other causes of pain such as ischemia, infection, neuroma, or pressure related wounds should be excluded before determining the diagnosis as phantom pain.  

 

Congenital Diaphragmatic Hernia in Newborns

Hernia is when an organ or tissue protrudes through a weak area in the surrounding muscle or connective tissue. There are different types of hernias that generally vary by location. Congenital diaphragmatic hernia (CDH) is a developmental defect of the diaphragm that permits the abdominal viscera to herniate into the chest. The amount of herniated contents may be small or large and it generally contains parts of the intestine, spleen, or liver. CDH occurs during a critical period of lung development when bronchial and pulmonary artery branching occurs so lung compression by herniated bowel can lead to pulmonary hypoplasia, which is underdevelopment of the lungs. CDH occurs in 1 out of 2200 births and in 50% of CDH cases, there are other associated anomalies such as chromosomal abnormalities, congenital heart disease, and neural tube defects.

Within the first few hours of life, infants with CDH may present with mild or severe respiratory distress that may be incompatible with life. Symptoms include bluish skin due to lack of oxygen, rapid breathing, and fast heart rate. On physical exam, patients may have a barrel-shaped chest, scaphoid appearing abdomen due to loss of abdominal contents into the chest, and absence of breath sounds on the affected side. In the majority of patients with CDH, herniation occurs on the left; therefore, the heartbeat is displaced to the right due to a shift in the mediastinum. Right sided diaphragmatic hernias occur in 11% of cases and bilateral herniation only in 2%.

The level of respiratory distress depends on the severity of lung hypoplasia. In the prenatal period, lung hypoplasia can be determined using ultrasound to evaluate herniated contents and to measure the lung area to head circumference ratio. Postpartum, there is no specific test to quantify the amount of hypoplasia. The diagnosis of CDH is generally made prenatally by ultrasound; however, in those where CDH is not diagnosed in utero, it should be suspected in any full term infant presenting with respiratory distress and the diagnosis is made by chest x-ray showing herniation of abdominal contents into the hemithorax

For neonates diagnosed by prenatal ultrasound, the following steps for monitoring and intervention are recommended: twice weekly nonstress testing or biophysical profile testing at 33-34 weeks in addition to ultrasound examinations at 28, 30, 32, and 34-35 weeks to assess fetal growth and amniotic fluid volume. If the fetus experiences growth restriction or oligohydramnios, which is a deficiency of amniotic fluid, the baby should deliver early and betamethasone (a steroid medication that assists in preterm fetal lung development) should be given prior to delivery if the fetus is less than 34 weeks.  The best mode and gestational age for delivery of a fetus with CDH is undetermined; however, the suggested time for planned induction of labor is between 38-39 weeks.

In the delivery room, infants with problematic CDH should be immediately intubated and ventilated with low peak pressure to minimize lung injury. A nasogastric tube on continuous suction is placed in the stomach for decompression of the abdominal contents, which can help expand available lung tissue. In addition, the infant should have an umbilicial artery line for monitoring of blood gases and blood pressure and possibly an umbilical vein catheter for administration of fluids and medications. Blood pressure support should be given and an echo should be done to determine cardiac abnormalities in addition to the extent of pulmonary hypertension and shunting.

Extracorporeal membrane oxygenation (ECMO) has been used as part of  the treatment in some hospitals. ECMO operates as a heart-lung bypass system; thus, it does the job the heart and lungs would be doing. ECMO can be used temporarily while the infant’s condition stabilizes and improves.  Once the infant is stable, he or she can undergo surgical repair of the diaphragmatic hernia, where the stomach, intestines, and other abdominal organs are returned to the abdominal cavity. The hole in the diaphragm is also repaired. If the diaphragm is absent, an artificial diaphragm will be constructed and placed. Following the operation, the infant will require breathing support due to underdevelopment of the lungs. Once the infant is taken off ventilation (breathing machine), he or she may need oxygen and medications to assist with breathing for weeks to years. Thus, CDH requires long term follow up to monitor the infant’s condition to ensure no future complications such as lung infections or other associated congenital problems. The prognosis is generally good for infants with CDH and survival is greater than 80%.  

Electrical brain mapping and epilepsy surgery

Epilepsy is one of the most common neurologic diseases in the world and is present in 4% 
of the world's population. The majority 
of patients with epilepsy can be managed medically. Intracranial surgery involves inherent 
risks; thus, surgery is only indicated if the benefits outweigh the risks of uncontrolled
 seizures. If surgery is indicated, the patient must undergo a pre-surgical evaluation that involves an extensive medical history focusing on
 seizure activity, type, frequency, and duration. In addition a physical exam must be performed to ensure 
there are no alternative causes for the seizures. The patient is considered a candidate for surgery for a variety of reasons such as inadequate response to medications; inability to tolerate medications due to side effects; seizures that significantly affect quality of life; seizures caused by a lesion such as scar tissue, brain tumor,arteriovenous malformation, or birth defect; partial seizures that always start in one area of the brain; and seizure discharges that spread to the whole brain (secondary generalization). 

iStock_000017465619XSmall.jpgOnce the patient meets the criteria for surgery, electrical brain mapping or electrocorticography is done to provide the surgeon with the necessary information about the brain
 to safely and accurately perform the surgery. Brain mapping is performed to localize the seizure focus, the area of the brain where the seizures begin. In addition, brain mapping identifies significant structures in the brain so the seizure focus may be removed without injuring vital brain structures relating to speech, comprehension, sight, movement, sensation, etc. Brain mapping is essential 
to determine whether the surgery is possible and the potential dangers to the surrounding 
brain regions.

Brain mapping determines the function of a particular area by providing direct stimulation via a current applied to a small area of the brain’s surface. Initially, the physician applies the lowest current and gradually the current is increased until a preset maximum is reached or a significant response is seen. The current interferes with how that area normally functions, but once the current is stopped that area of the brain resumes its usual activity. For example, if a current causes the patient to stop speaking, or to speak unclearly or incoherently, then that area is likely essential for language function. Once the function of an area is identified, a new location in that region is chosen and the physician starts over with the lowest current. Thus, a map is created that illustrates individual functions of different brain areas.

Electrode mapping can be performed in two ways: in a two-stage procedure (the most common way) or directly during the surgery itself. Generally, the current utilized is neither painful nor felt by the patient. However, an electrode occasionally makes contact with the membranes surrounding the brain and at these locations, the patient may experience pain or a tingling sensation when the current is applied. These contacts are easily identified and avoided because physicians always start at a low current.

In the two stage procedure, the surgeon creates an opening in the cranium that exposes the surface of the brain. Electrodes (small electrical contacts) are placed, the scalp is closed, and the patient is then closely monitored in a hospital bed. The electrodes then record the patient’s seizures identifying the seizure focus and map the areas of the brain under electrodes. The two stage procedure utilizes extra-operative brain mapping because it happens outside of an operating room. The patient is always awake, conscious, and able to fully participate during the mapping. The second stage of the procedure is the surgery itself, which removes the abnormal brain tissue using the information gathered from the electrical recordings and brain mapping.

Electrical brain mapping can also be performed during any surgery that exposes part of the brain. Therefore, it is an intraoperative procedure because it occurs during an operation. The surgeon tests locations on the brain’s surface using small electrical probes to create a map of functions. Even if the patient is under anesthesia, areas involved with movement can still be identified electrically; however, the patient must actively participate to map areas involving language, sensation, or vision. The patient is awakened from anesthesia and is given the necessary medications to eliminate pain. Intraoperative mapping is generally done when prior extraoperative mapping discovered important functions adjacent to the area targeted for removal.

Every neurosurgical procedure involves risks such as infection, bleeding, and cerebral edema (accumulation of water in the brain). The major risk for this procedure, specifically for individuals with epilepsy, is that a seizure may be triggered because mapped areas are in close proximity to where the seizures usually begin. Applying electrical currents to areas near the seizure focus can set off a seizure so physicians must closely monitor the patient’s brainwaves during the stimulation. If electrical discharges are noted that could evolve into a seizure, the stimulation is immediately stopped. If a patient suffers from a seizure, the mapping is stopped until the patient fully recovers. If the area being mapped is very sensitive, the patient is often given a powerful anti-seizure medication before receiving any further electrical stimulation.

If the surgeon collects incorrect data during electrical brain mapping and/or excises excessive brain tissue during surgery, the patient may be left with permanent neurological impairment. It is in these scenarios, among others, that a medical malpractice claim could arise. 

Pituitary Adenomas and Medical Malpractice

A pituitary adenoma is generally a benign, slow growing tumor that occurs in the pituitary gland. The pituitary gland is a small, bean shaped structure that lies at the base of the brain. It has a central role in the regulation of hormones that affect the body such as Adrenocorticotropic hormone (ACTH), Growth hormone (GH), Prolactin, and Thyroid-stimulating hormone (TSH).

Approximately 1 in 1,000 individuals have pituitary adenomas. They are generally not cancerous but may invade nearby structures.  They are classified based on size. A microadenoma is less than 1 cm in diameter whereas a macroadenoma is larger than 1 cm in size.

iStock_000017548218XSmall.jpgBased on whether the pituitary adenoma is a hormone-producing or hormone-inactive tumor, the patient will present with different symptoms. Hormone-producing tumors will make excessive amounts of an active hormone so symptoms present as a hormonal imbalance. The three most common hormone-producing adenomas are Prolactinomas, Growth hormone-secreting pituitary adenoma, and ACTH-secreting pituitary adenoma.

If the patient has a large hormone-inactive or hormone-producing tumor, it may compress surrounding brain structures due to its size.  Large pituitary tumors may compress the pituitary gland contributing to pituitary failure, which can lead to sexual dysfunction, inadequate body cortisol levels, and hypothyroidism. Other possible presentations relating to compression of brain structures include visual loss, headache, the “stalk effect”, and pituitary apoplexy.  The “stalk effect” is due to the compression of the pituitary stalk, the structure connecting the brain to the pituitary gland, which leads to a mild elevation in the hormone prolactin. Higher levels of prolactin in females can contribute to irregular menstrual cycles. Pituitary apoplexy presents with an abrupt headache and visual loss. It can occur under two different situations. The pituitary adenoma can bleed internally causing a sudden increase in size or the tumor can outgrow its blood supply and the dead tissue will swell.

Pituitary adenomas can be diagnosed based on endocrine function testing, imaging, and visual field testing. Often times, visual problems may be the only symptom present.  Optometrists and ophthalmologists should seriously consider the possibility of a pituitary tumor when the patient presents with an unexplained loss of visual field (especially peripheral vision), double vision, or blurred vision as the growth of a pituitary tumor can cause compression on the visual pathway (retina, optic nerve, etc). A delay in diagnosis of a pituitary adenoma may result in permanent loss of vision due to the damage caused by this compression. Endocrine function testing evaluates cortisol, follicle-stimulating hormone, lutenizing hormone, insulin growth factor-1, prolactin, testosterone/estradiol, and thyroid hormone levels. The preferred method of imaging is MRI, which screens for adenomas larger than 4 mm.

Treatment for pituitary adenomas depends on the presence of hormone production, size of the tumor, invasion of the tumor into surrounding structures, and the age and health of the patient. Drug therapy is used to treat hormone-producing tumors. For example, bromocriptine and cabergoline are used to treat tumors secreting prolactin because these medications decrease prolactin levels and tumor size. Pituitary adenomas that require surgery are usually minimally invasive techniques, where the tumor is removed through the nose.  On the other hand, radiation therapy involves high doses of radiation being delivered to the tumor. It is a treatment utilized for pituitary adenomas that cannot be controlled by drug therapy or surgical intervention. Patients have the best outlook when the entire tumor can be removed. 

Laparoscopic Cholecystectomy- Minimally Invasive Gallbladder Surgery

The surgical removal of the gallbladder is called cholecystectomy. Gallbladder problems are usually caused by the presence of gall stones, which are small hard masses consisting of cholesterol or bile salts that form in the gallbladder or in the bile duct.  A problem may arise when one or more gallstones block the flow of bile out of the gallbladder.  This may cause swelling, abdominal pain, vomiting, indigestion, and fever.  If a gallstone blocks the common bile duct (the larger bile duct which drains into the small intestine), jaundice may occur.  Removal of the gallbladder is one of the most commonly performed surgical procedures in the United States.  For the past twenty years, gallbladder surgery has been performed laparoscopically.  The medical name for this procedure is laparoscopic cholecystectomy.

Laparoscopic surgery is performed with the assistance of a video camera encased by a long thin tube. During a laparoscopic procedure, small incisions are made and plastic tubes called ports are placed through these incisions. The video camera and small thin instruments are then introduced through the ports, which allow access to the inside of the patient. The camera transmits an image of the organs inside the abdomen onto a television screen, which allows the surgeon to see into the patient’s body and perform the surgery.

Because laparoscopic cholecystectomy does not require the abdominal muscles to be cut, there is less pain, quicker healing, improved cosmetic results, and fewer complications such as infection and adhesions.  Most patients can be discharged on the same or following day, and can return to work in about a week.  With over twenty years of experience, laparoscopic cholecystectomy should be and is a very safe operation.  The overall complication rate is less than 2% when performed by a properly trained surgeon.  

Complications of laparoscopic cholecystectomy are rare, and can include bleeding, infection, pneumonia, blood clots, or heart problems.  Unintended surgical injury to adjacent structures such as the common bile duct, the first part of the small intestine called the duodenum, or other parts of the small bowel may occur and may require another surgical procedure to repair them.  Bile leakage into the abdomen from damaged bile ducts can cause a painful and potentially dangerous infection. Many cases of minor injury to the common bile duct can be managed non-surgically.  Major injury to the bile duct, however, is a very serious problem and may require corrective surgery. This surgery should be performed by an experienced biliary surgeon 

Because laparoscopic cholecystectomy was considered a new procedure in the late 1980s and 90s, what was called a “learning curve” was created to explain complications that did occur.  By observing the learning curve for laparoscopic skills during those early procedures, and applying what was learned to the training of future surgeons during their residency programs, it was believed future injuries could be avoided. Numerous studies concluded that surgeons truly dedicated and interested in learning new laparoscopic procedures needed to set aside a substantial amount of time to acquire the skills needed. Practice in animate and inanimate models, repeated observation with the opportunity to ask questions and the presence of an instructor during the first ten cases were essential

A 2005 article in the journal Surgical Endoscopy entitled “Laparoscopic cholecystectomy after the learning curve: what should we expect?” addressed the issue of the increasing common bile duct (CBD) injuries, which started in the late 1980s.   They did a retrospective analysis of laparoscopic cholecystectomies performed at a single institution from that time to the present, and found that eventually they had decreased the complication rate to zero CBD injuries in 1,674 consecutive procedures.  They concluded that injuries of the CBD can be avoided by performing an extensive dissection and by developing a critical view of the operative field to ensure the patient's safety.   It appears that unlike the late 1980s and 90s, the 21st century finds laparoscopic cholecystectomy to be a mature and safe surgical procedure.  

Though there are certain acceptable risks associated with any kind of operation, the vast majority of laparoscopic gallbladder patients experience extremely few or no complications and quickly return to normal activities.  It is important to remember that before undergoing any type of surgery, whether laparoscopic or open, one must ask his or her surgeon about his or her training and experience in performing laparoscopic cholecystectomy.  Absent unusual circumstances, life altering complications are no longer acceptable in today’s modern practice of laparoscopic cholecystectomy.