Suit calls anesthesiologists, remedies code into question

Marilyn Tennissen Apr. 18, 2007, 9:00am

LMA device for administering anesthesia

A wrongful death lawsuit filed recently in Orange County is not only calling into question the actions of two anesthesiologists, but the constitutionality of the state's civil remedies code as well.

Joann Brown, on behalf of her deceased mother Shirley Brown, filed a lawsuit April 12 against anesthesiologist Dr. Frank Kuang-She Che and nurse anesthetist Michael Ieyoub.

According to the plaintiff's original petition, Shirley Brown, 59, underwent an outpatient gynecological procedure at Memorial Hermann Baptist Hospital in Orange on April 28, 2005.

Che and Ieyoub administered the general anesthesia for the surgery to remove endometrial polyps.

"The surgery itself was uneventful, but at the end of the procedure the patient developed respiratory distress, laryngospasm and hypoxia," the petition states. "Oxygen saturation dropped to as low as 40 percent. A code was called and the patient was intubated with an endotracheal tube and oxygen saturation returned to 100 percent."

Medical records indicate that Brown aspirated stomach contents into her lungs during the procedure and died May 11, 2005, of aspiration pneumonia.

"While under the care and control of the defendants, Shirley Brown continously suffered gross abuse, extensive neglect and undue pain. Mrs. Brown's basic needs were ignored and her dignity was disregarded," the petition states.

The plaintiff alleges that Chen and Ieyoub were negligent because of the way they administered the anesthesia, which was done through a laryngeal mask airway, a device placed into the throat.

In a statement attached to the original petition, Dr. Mark Winik, a board certified anesthesiologist licensed in Maryland and New York, said Brown had several risk factors that should have prompted the anesthesiologists to use a different course of action and administer additional medications.

Winik said Brown's medical records indicate that she was obese, hypertensive and had ischemic heart disease, or a restriction in blood supply to the heart.

Accoring to Winik's statement as an expert for the plaintiff, an obese patient with ischemic heart disease was at an increased risk of aspiration of stomach contents.

"The standard of care … would require the anesthesiologist to administer anesthesia via endotracheal tube as opposed to LMA," Winik stated. "The LMA rests above the vocal cords and provides no protection against aspiration."

The lawsuit also alleges that Chen and Ieyoub were negligent because they failed to administer prophylactic drugs that would have lessened the acidity and volume of gastric secretions in the patient's stomach, such as Alka-Seltzer, Bicitra, Reglan or Pepcid.

"The afformentioned acts and ommissions of defendants constituted negligence per se and such actions were in violation of the legislative statutes passed for protection of the elderly, under the Texas Health and Safety Code," the petition states. The code says that the elderly may not be physically or mentally abused or exploited, must be treated with respect and dignity and may not be denied care based on sex, age or handicap.

"The harm that befell Shirley Brown while under the care of the defendants was the type of harm these statutes were designed to prevent," the plaintiff alleges.

The suit also alleges that the defendants committed a felony by having removed, destroyed or concealed writings.

In addition, "plaintiffs maintain and contend that the Civil Practice and Remedies Code pertaining to medical malpractice is itself unconstitutional" because it limits damage amounts.

The plaintiff says in particular, the limit on recovery of damages based on the number of plaintiffs and violates due process by "creating uneven or disportionate remedies for families because of the number of family members."

Joann Brown is only child of Shirley Brown.

She is seeking damages for medical expenses, mental anguish, impairment, funeral expenses and loss of companionship.

The wrongful death suit also alleges that defendants acted with malice and conscious indifference and therefore the plaintiff is also seeking exemplary and punitive damages.

She is requesting a trial by jury.

Mike Jacobellis is representing Joann Brown.

The case has been assigned to the 128th District Court in Orange County.

Case No. A07015-C

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