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Jury reaches defense verdict in $4M med mal action

Virginia Lawyers Weekly//June 5, 2023

Jury reaches defense verdict in $4M med mal action

Virginia Lawyers Weekly//June 5, 2023

Type of action: Medical malpractice

Injuries alleged: Death

Name of case: Estate of Hicks v. ACV, Inc.

Court: Roanoke Circuit Court

Case no.: CL18-2140

Tried before: Jury

Name of judge or mediator: Judge David A. Carson

Date resolved: 2/2/2023

Demand: $4,000,000

Verdict or settlement: Verdict

Amount: $0 (defense)

Attorneys for defendant: Carlyle R. “Randy” Wimbish III and Bradley D. Reeser, Richmond

Description of case: Douglas Hicks was transferred by ambulance from an urgent care center to the emergency department at Roanoke Memorial Hospital on Oct. 1, 2016, for evaluation of persistent coughing and hypoxia. He had been fighting an upper respiratory infection for the better part of a month and had completed at least two courses of oral antibiotics without resolution of his symptoms. Approximately two hours after his arrival, the ED physician noticed a mass in his neck that got progressively larger over time. While in the ED, Hicks also experienced difficulty swallowing and problems with gagging and coughing up copious amounts of phlegm. Hicks was admitted to the hospital’s ICU and underwent a CT scan shortly after 3 a.m. on Oct. 2. The CT demonstrated a large mass in Hicks’ neck that was compressing his trachea and deviating it to the left. The hospitalist who took over his care following admission called the defendant anesthesiologist around 4 a.m. and asked him to come to the ICU and intubate Hicks to protect his airway.

When the anesthesiologist arrived in Hicks’ room, Hicks was able to carry on a conversation, give his consent to be intubated, and help position himself on the bed to be intubated. The anesthesiologist performed a rapid sequence induction using anesthetic and paralytic drugs and then attempted a traditional intubation using a laryngoscope. When he was unable to visualize Hicks’ vocal cords, he called an airway alert, which brought a surgical team to the room. While that team was in route, he made at least two more attempts to intubate Hicks using different video laryngoscopes. When those attempts were also unsuccessful, even though Hicks was being successfully ventilated between attempts, the anesthesiologist made the decision in consultation with the surgical team that had arrived to perform a surgical airway. Although the surgeons were able to perform a tracheotomy and place a breathing tube that was then connected to a ventilator, the effort was complicated by the fact that Hicks was extremely hyper-anticoagulated (a fact that was not discovered until the surgical airway was underway because no one in the ER or ICU had ordered an INR level in spite of the fact that Hicks was on Coumadin).

Approximately three hours after the surgical airway was placed, Hicks experienced a series of cardiac arrests that began after blood pooled in his lungs and blocked his breathing tubes. He was eventually resuscitated, but not before he experienced an irreversible anoxic brain injury. Hicks died on Oct. 2, 2016. He was survived by his wife and three adult children. Hicks’ wife was in the early stages of dementia at the time of his death, and his daughter had to assume the caregiver role that he would have filled had he lived.

The plaintiff’s expert, an academic anesthesiologist, testified that the defendant breached the standard of care by attempting a traditional intubation in a patient who met the criteria for a difficult airway. Relying on his interpretation of guidelines published by the American Society of Anesthesiologists and other medical literature, he contended that the defendant should have attempted an awake intubation using a flexible fiberoptic bronchoscope that would have maintained Hicks’ ability to breath on his own. He further alleged that an awake intubation would have been successful with no need for a tracheotomy and the subsequent bleeding complications.

The defendant’s anesthesiologist was a community-based practitioner who testified that the ASA guidelines did not mandate an awake intubation, but rather permitted an anesthesiologist to choose from multiple intubation techniques, including those employed by the defendant, based on his experience and judgment. He also disputed the suggestion that an awake intubation would have been easy, particularly considering Hicks’ body habitus, the expanding neck mass, his difficulty swallowing and his problems with coughing, gagging and phlegm. The defendant testified that he had successfully intubated hundreds of patients with difficult airways using the traditional method, including soldiers with serious head and neck wounds during a tour of duty in a field hospital in Afghanistan. The defendant also called an otolaryngologist who regularly performed difficult intubations to testify that the choice of intubation technique had nothing to do with Hicks’ death.

At the conclusion of a four-day trial, the jury deliberated for less than two hours before returning a defense verdict.

Defense counsel Carlyle R. Wimbish III provided case information.


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