Federal Judge Awards Family $14.2 Million for Ear Infection Surgery Gone Wrong

During the child’s first year of life, he received a diagnosis of sickle cell disease and asthma. He suffered from frequent ear infections, upper respiratory infections, and a sickle cell pain crisis. As a result, he was frequently hospitalized.

The child’s pediatrician referred him to the Walter Reed National Military Medical Center (WRNMMC) Otolaryngology Clinic for an evaluation to determine if he was a suitable candidate for Bilateral Myringotomy Tympanostomy and Tubes (BMTT) and adenoidectomy surgery. The BMTT procedure would involve implanting ear tubes in the child’s ear. This would drain the infected fluid from the middle ear and prevent future ear infections.

On June 22, 2016, the primary surgeon on the case, Dr. Scott Brietzke, evaluated the child at WRNMMC. Dr. Brietzke reviewed the child’s medical history and conducted a physical examination. Afterward, Dr. Brietzke recommended that the child undergo a BMTT procedure to address his recurring ear infections. In addition, he recommended an adenoidectomy to address the reported snoring and mouth-breathing issues. An adenoidectomy would remove the adenoid glands in the back of the mouth. The child’s parents, Timmeka Harris-Reese and Sergeant Douglas Reese, Jr., chose the recommended procedures. The procedures were scheduled for September 13, 2016.

According to Dr. Brietzke, the child’s sickle cell disease made him a “complex patient.” As such, Dr. Brietzke recommended that he be admitted to the hospital following the surgery for further treatment and observation.

The Surgery

The day before the surgery, upon reviewing the child’s medical history, the anesthesiologist who handled the surgery, Dr. ​​Christine Gerbstadt, expressed concern about the difficulty and risk of the case. More specifically, based on her review of the child’s medical history, she believed that he was at high risk for multiple complications from the anesthesia, including brain injury and death. Based upon these concerns, Dr. Gerbstadt recommended to the pediatric clinic that had referred the child for surgery that he be pre-admitted to the hospital the night before his procedure to receive hydration through an intravenous line (IV). Unfortunately, her concerns and recommendation were ignored.

On the morning of the procedure, Dr. Gerbstadt again expressed her concerns to Dr. Brietzke. She noted again that the child was a high-risk case due to his sickle cell disease and asthma. However, Brietzke insisted that the surgery needed to be done to address the child’s chronic ear infections and breathing issues.

Later that morning, Dr. Brietzke presented to the child’s father a description of the risk of the surgeries. Dr. Brietzke used language on a standard form that he had developed and used for all such surgeries. The listed risks included pain, bleeding, infection, and potential damage to the structure of the ears, mouth, and throat. The listed risks addressed anesthesia only by generally noting that there were “risks of anesthesia.”

Surgery Complications

On September 13, 2016, the child underwent a routine BMTT and adenoidectomy surgery at WRNMMC in Bethesda, Maryland. During the procedure, the child showed signs of troubled breathing. The anesthesiologist attempted to control the child’s ventilation. However, the anesthesiologist could not bring it to a normal level at any point in the procedure.

Simultaneously, the child’s heart rate was abnormally high, then it began to drastically decline. In addition to the difficulty breathing and heart failure, the child was also experiencing low blood pressure. However, despite the low blood pressure readings, no one adjusted the settings on the monitor for more frequent readings. Furthermore, blood pressure medication was not administered in a timely manner.

During the procedure, due to the child’s poor ventilation, heart failure, and low blood pressure, multiple audible and visible alarms were warning the surgical team of the issues. Despite these alarms, the primary surgeon continued to perform the BMTT and adenoidectomy. One hour into the surgery, the child’s heart stopped beating and entered cardiac arrest. The surgical team performed CPR for approximately 10 minutes until the child’s heart restarted.

The Aftermath

Following the procedure, the child suffered a cardiac arrest with resultant hypoxic brain injury. As a result of cardiac arrest, the child now suffers from permanent global neurological impairment. He is now largely nonverbal, immobile, and confined to a wheelchair or his bed. The child requires 24-hour nursing care, 32 different medications, a ventilator, and a feeding pump. Additionally, the child needs a wheelchair, a mechanical lift, and a specialized bed. Medical experts estimate that the child’s life expectancy is only 21 years old. The child also now experiences multiple seizures per day, each of which carries a risk of death. Furthermore, the child has since been hospitalized for seizures on multiple occasions.

Doctors suggest that due to his brain injury, the child will be unable to live independently, graduate from high school, or be gainfully employed. Additionally, the child will continue to experience significant pain and suffering because of his cardiac arrest and resulting brain injury.

Due to the child’s need for constant care, his mother is now his primary caregiver. She is unable to work a full-time job or finish her college degree. His father, a sergeant in the military, plans to leave the service so that he can care for the child full-time.

Procedural History

On July 19, 2019, the child’s parents, TimMeka Harris-Reese and Sgt. Douglas Reese, Jr., filed a medical malpractice lawsuit against the United States in the U.S. District Courts of Maryland. U.S. District Judge Theodore D. Chuang oversaw the case. The plaintiffs alleged negligent medical treatment and lack of informed consent regarding the surgeries performed on their child at WRNMMC.

More specifically, in count one of the complaint, the plaintiffs alleged that the surgical team breached the applicable standards of care, which caused their child to go into cardiac arrest during the procedure and suffer an anoxic brain injury. As a result, the child suffered permanent brain damage. In count two of the complaint, the plaintiffs alleged that the physicians breached their duty of informed consent by failing to disclose the material risks and consequences associated with the surgery given the child’s age of only one year and his comorbidities, including sickle cell disease and asthma.

An 11-day bench trial commenced on March 21, 2022, on liability and damages.

The Judgment

Standards of Care

Judge Chuang found that the plaintiffs’ attorney, Robert R. Michael of Shadoan, Michael & Wells, established that the anesthesiologists had several applicable standards of care. Such standards of care included:

• Managing the patient’s breathing and cardiopulmonary stability during the procedure
• Stopping or suspending the surgery prior to the cardiac arrest to gain control of the patient’s ventilation and other vital signs

In regard to the surgeons, the judge found that the surgeons’ standard of care required them to perform the surgery in no more than 25 minutes to minimize risks. In addition, the surgeons had a duty to respond to the alarms in the operating room to determine if they should suspend or stop the surgery.

Finally, as to the duty of informed consent, the court found that in a case in which the patient is at a heightened risk for serious injury or death from the use of anesthesia as a result of underlying health conditions, such as sickle cell disease and reactive airway disease, the standard of care required the physicians to specifically disclose those risks to the patient or his parents during the informed consent process, not simply rely on the general warnings in standard forms stating that anesthesia can result in serious injury or death.

Breach of Standards of Care

The judge found that the evidence established that there were breaches of the standards of care applicable to the anesthesiologists. This included failing to manage the patient’s ventilation, heart rate, and blood pressure. Additionally, the judge found that the anesthesiologists failed to either stop or suspend the procedure to prevent cardiac arrest.

As it related to the surgeons, the court found that the evidence established that Dr. Brietzke breached the standard of care by allowing the full surgery to last 45 minutes, significantly more than the 25 minutes that would be within the standard of care for a patient with the child’s high-risk conditions. The court also found that Dr. Brietzke breached the standard of care by failing to inquire when both audible alarms and discussion in the operating room made it clear that the anesthesiologists were having problems properly ventilating the child and maintaining his vital signs at acceptable levels.

However, regarding the informed consent claim, the court found that between the general disclosure in the anesthesia consent form that the anesthesia could result in complications including brain injury and death, and Dr. Gerbstadt’s additional disclosure of the child’s higher risks for such complications, there was no breach of the duty to disclose material risks. Accordingly, the informed consent claim failed.

Causation

The court concluded that (1) the failure of the anesthesiologists to administer the proper medications when faced with signs of poor ventilation, heart rate, and blood pressure; (2) the failure by Dr. Gerbstadt or Dr. Brietzke to stop or suspend the surgery before its completion; and (3) the failure by Dr. Brietzke to take over in order to bring the surgery to completion on a faster timeline were all proximate causes of the child’s brain injury.

Damages

The plaintiffs’ claim for damages included the child’s lost earning capacity and future medical care costs, the value of Ms. Harris-Reese’s past home nursing services, and the value of a Maryland Medicaid lien, as well as noneconomic damages for the child’s pain and suffering.

Judge Chuang found that throughout the rest of the child’s life, he will require extensive medical care because of the injuries he sustained during his surgery. He noted that prior to the events of September 13, 2016, the child was able to walk, climb stairs, feed himself, play with his siblings, speak simple words, and interact with his surroundings. However, he can no longer do any of those things following surgery. He found that despite the patient’s comorbidities prior to surgery, cardiac arrest and the loss of a heartbeat for 11 minutes caused his brain injury.

The child’s medical care expenses fell into three main categories: nursing care, therapy, and other medical needs. The other medical needs included medications, medical devices, assisted living renovations, and various prior expenses. This resulted in an outstanding Maryland Medicaid lien.

The Verdict

The judge found that the plaintiffs’ requests for future medical expenses were reasonable and necessary. As a result, the judge awarded $11,626,161 to the plaintiffs. In addition, the court concluded that the child’s mother’s care is reasonably valued at $43.75 per hour. The court applied the amount to an average of 22 hours per week for 243 weeks. This resulted in a total value of $233,887.50. Next, the court awarded the plaintiffs $27,127.61 to satisfy the Maryland Medicaid lien for past medical expenses. Finally, for the child’s noneconomic damages, the court awarded the statutory maximum for medical malpractice claims of $770,000. The final award totaled $14.2 million, including $11 million in future medical expenses.

Robert R. Michael, one of the attorneys for the parents, said that when he called the child’s mother to tell her about the verdict, the child’s mother was “emotionally overwhelmed and unable to speak for several minutes.” Once she was able to speak “she thanked God that her child finally received justice, and she would now be able to take care of her child in a manner (he) needs,” Michael said. “She has for over five years had difficulty with reliable nursing coverage provided by the government and will now have the resources to directly hire the needed full-time 24-hour nursing care that her son needs.”

Key Takeaways

Medical malpractice lawyers seeking to bring a claim for medical malpractice and secure a sizable award for their client must demonstrate the appropriate standard of care for each treating physician at each stage of care. This will ensure that even if some claims fail, like the claim for breach of informed consent in this case, the plaintiffs still have other successful claims for medical malpractice to rely upon.