I was thinking that I would put off writing this because it would give me more time to collect my thoughts about it, but realistically if I was chosen as an actual juror, I would have had to decide all this already. Let’s start with some of the details of the case.
Before I do that, I should mention that this is my recounting of the events as told to me as I was a member of the jury in this case. I wasn’t there for any of the actual events that happened, it’s been more than a week since I heard the first witness, and I don’t have my notes from court since they are destroyed when the case is concluded. As such, it’s probably the case that most of what I’m about to relay has some errors in it, and any conclusions that I draw are - as would be obvious to any sensible reader - my own personal opinion and not an accounting of fact. That said…
The plaintiff, Craig Kobus, had some problems that required shoulder surgery. Craig is a healthy guy and he plays a lot of sports, which seems to be how he has injured his shoulder. With the intention of being able to carry his daughter (from a previous marriage - more on this later) around during a summer trip to Disney World, he elected to have the surgery performed at Chester County Hospital.
In a generally well state and - according to the testimony of all of his family who were present beforehand - relaxed and looking forward to having the operation, he came to meet Dr. Boxer, his anesthesiologist Here is where things start to go awry.
There is no question that Mr. Kobus and Dr. Boxer ever met, since Mr. Kobus signed a consent form for having the anesthesia. But at some point during his treatment, Mr. Kobus was given a drug that has amnesia-like qualities. As a result, he doesn’t remember having spoken to Dr. Boxer. Moreover, the contention (one point, anyway) is that Dr. Boxer did not properly inform Mr. Kobus of the risks involved in the procedure that he was going to perform, or did not properly inform Mr. Kobus of the increased risk of problems with the two different types of anesthetic that were used, an interscalene block and general anesthetic.
In fact, while Mr. Kobus contends that he would not have had a problem with just the interscalene block and no general anesthetic (this is how Dr. Boxer had performed all but one other interscalene block in his entire career), Dr. Boxer says that Mr. Kobus was so anxious about the procedure that he said something to the effect of, “Nobody is going near my neck with a needle.”
Basically (and here’s where a week of court has led me to learn an unusually robust amount of medical knowledge), the doctor was instructed by the surgeon that all of this patients that day, including Mr. Kobus, were to receive interscalene blocks. An interscalene block is a procedure performed by injecting an amount of anesthetic into the interscalene area (generally, in the neck) to numb the nerves that send pain information from the shoulder to the brain. These types of blocks are interesting in how they are administered.
To perform an interscalene block, one must use a special needle with an electrified tip. Using a control mechanism, the amperage at the tip of the needle is controlled, and a small shock is sent into the body. When near the appropriate nerves, the shock causes the patient’s arm to twitch. Then the current is sufficiently low and the arm still twitches, the doctor knows that the needle is in the right place.
The goal here is to insert the needle through a sheath that surrounds the nerves, but not so far as to puncture any nerves, and then inject the anesthetic - in this case, bupivacaine - into that area to affect the numbness.
The possible problems with this include the risk of injecting that medication into somewhere that it doesn’t belong. For example, it could be accidentally injected into the spinal column, which could cause various problems as the anesthetic numbs the spinal nerves. The lungs are another potential danger area. In this case though, the danger is from an intravascular injection - directly into the blood stream.
Some of the things you can do to avoid severe effects of central nervous system (CNS) toxicity caused by intravascular injection of bupivacaine are pretty simple. If you aspirate (pull out the needle’s plunger) before you inject, then you can observe the fluid that comes out of the body. If it’s blood or air or spinal fluid, then you’ve got the needle in the wrong place.
Also, if bupivacaine is injected into the bloodstream, the patient will experience a tingling sensation around their mouth, ringing in the ears, or general disoreintation. It may take a few seconds (depending on who is testifying) for the drug to work its way around the body to the brain, more or less depending on where the injection took place. Regardless of how long it takes, upon hearing a report of these symptoms, a prudent doctor will stop administering the dose to the patient. For this reason, the medical literature recommends that the dosage be fractionated; that small doses be given with waiting time between each dose to see if the patient to reports symptoms.
Anyone will immediately see a problem with this process when they realize that Mr. Kobus was also on general anesthesia at the time of the injection, and was not able to report any of these mild symptoms of CNS toxicity because he was asleep. However, most anesthesiologists will combine their anesthesia drug with epinephrine. Epinephrine is basically adrenaline. If it enters a patient’s blood stream with the bupivacaine, it increases the heart rate significantly, and this can be detected on any of the various monitors that display the patient’s heart rate.
Epinephrine is also a standard drug to be mixed with the anesthetic in these cases because it is a powerful vasoconstrictor. How I understand the effect is that the vascular system (veins and arteries) contract when exposed to epinephrine. This restricts the blood from moving the anesthetic - essentially a poison - away from the injection site to organs that will filter it out of the body.
Ok, so the doctor injects Mr. Kobus with the bupivacaine. We aren’t exactly sure how fast this happens, since the only people actually observing it happening are the nurse and the doctor, but we have an idea that there is about 5-7 second between fractions of the dose. In all, it could have taken 90 seconds to just over 2 minutes to inject all of the anesthetic, even according to Dr. Boxer’s own testimony (as I remember it).
None of the defense experts or Dr. Boxer have seemed to think this was a short time, whereas all of the plaintiff’s experts do. There were only two logical explanations that I remember for a reasonable length of time to wait. The first comes from the plaintiff’s expert, that it could take up to 15 seconds for the drug to reach the brain from Mr. Kobus’ point of injection to even begin to see the effects of the drug. The second comes from a defense expert who says that waiting much longer than 7 seconds between doses can be dangerous since the position of the needle could have moved from its original positioning into an area where it isn’t supposed to be.
Regardless of all of that, the doctor and nurse both report that they were disposing of the needle equipment when the monitors started to report a ventricular tachycardia in Mr. Kobus. Tachycardia means “abnormally fast heart beat” and ventricular means that instead of the usual top-down controlled pumping action of the heart, the action of the heart was driven by the ventricles, near the bottom.
At that point, the automated blood pressure cuff stopped working properly. Whether it was unable to obtain a blood pressure because of the fast heart rate or because Mr. Kobus’ blood pressure was too low, nobody can adequately say. But every doctor agrees that this particular type of machine isn’t exactly the most reliable thing in the operating room under strenuous circumstances.
Nearly every doctor including Dr. Boxer was worried that Mr. Kobus was hypotensive; that he had low blood pressure. This is a known cardiovascular side-effect of the bupivacaine. Instead of treating the blood pressure (whether it was hypotensive or hypertensive), Dr. Boxer treated the tachycardia with esmalol. Esmalol is a drug that will reduce the heart rate, and also lower the blood pressure.
I have some confusion about the exact order that the symptoms presented themselves, but somewhere in here Mr. Kobus has a seizure. Seizures are a severe side effect of CNS toxicity due to intravascular injections of bupivacaine. Unfortunately, they’re also the first symptom that will be apparent to a doctor who misses any signs that the epinephrine had entered the blood stream.
Also during this time, the doctor and nurse try to find the patient’s pulse. There are a number of other devices in the room that detect heart rate that are working fine apart from the blood pressure cuff, but finding a pulse at the wrist indicates a minimum blood pressure of 60mm Hg.
After 5 to 7 minutes of waiting, the seizures are over. The blood pressure machine reads a normal pressure again, and the tachycardia has ended. Suffice to say, the surgery was not completed and they wait for Mr. Kobus to wake up.
Someone called his family to tell them that something had gone wrong, and while they’re arriving at the hospital, Mr. Kobus undergoes some physical examination to determine if he has suffered any additional injury as a result of the anomaly. They conclude that he did not. He is allowed to return home.
Later that summer (of 2003, the operation having been scheduled for April 22, 2003), Mr. Kobus starts to notice changes in himself that he finds disconcerting. He finds that he has trouble remembering things. He gets tired very easily.
His family reports that he has changed somewhat dramatically. He becomes very introverted, contrary to his previous days as a very successful salesman. They see that he is unable to concerntrate on specific tasks.
One of the examples his (new) wife gives is that when they moved into their new house, he was going to hang some photos on the wall. He stood there with the nails and hammer in hand, staring at the wall, completely unable to fathom the first step of the process.
There were a handful of other examples cited by his family, perhaps one of the more compelling was his brother’s description of their conversations comparative between before and after the procedure. Before, Craig was very engaged and would debate willingly. Afterwards, he wouldn’t carry a conversation at all.
Later, Mr. Kobis began to report uncontrollable facial ticks and grimacing, and he began to stutter. This is bit contrary to how Mr. Kobus behaved on the stand. He was showing all of these signs when he was questioned by his own attorney, but not when questioned by the defense. He was quite lucid in his responses and in spite of his claims of memory loss, he seemed to recall everything about his life after the surgery just fine.
In any case, he began to see a slew of doctors to try to figure out what is wrong with him. After all of the testing and perhaps a dozen different consultations, he ended up being treated by a doctor whose specialty is neuropsychology. This doctor considers Mr. Kobus to have a brain injury.
What Mr. Kobus contends is that during the time when he was having seizures, he was hypoxic. His brain was not receiving enough oxygen because his blood pressure was too low. Many experts offer facts about how blood pressure relates to the brain’s health.
Essentially, you have a diastolic (low) and systolic (high) blood pressure based on when the heart is pushing and not pushing blood through the arteries. These are measured in millimeters of mercury. You can use these values to compute the mean (average) arterial pressure. Using the mean arterial pressure, you can subtract the resistance that the brain provides (usually about 10) to come up with the pressure of blood in the brain. The blood pressure in the brain has to be around 50 in order to keep the brain alive and healthy. This means that you need at least a mean arterial pressure of 60, meaning that the average of your systolic and diastolic pressures must be at least 60 to keep your brain working right.
If the systolic pressure of a person is only 60, that’s not good for the brain, especially if that lasts for several minutes. Consider that the diastolic pressure is usually 2/3 of the systolic, and you’ll see that the blood pressure in the brain at that minimal level is only 40. Remember that having a pulse indicates a minimum systolic pressure (you’re feeling the beats of the heart, so that’s the maximum pressure) of 60. So there’s a chance that Mr. Kobus suffered brain damage from the time that he was receiving his bupivacaine for his operation.
Whether Mr. Kobus actually had a brain injury is up to a lot of interpretation. Psychologists are crafty badgers, and it seems that while you can observe certain behavioral reactions in people - for example, noting how anxiety affects memory loss - I am not personally convinced that any of them can say what a person has suffered or to what detriment that has affected their life.
The tests Mr. Kobus took to determine whether he had suffered a brain injury included a battery of tests called the Wexler Memory Scale. On that test, Mr. Kobus scored as “average”. Well, sure, maybe that’s not deficient. On the other hand, I know that my memory is superb, and if I had a brain injury that caused me to score averagely, I would be very upset even if my memory was still as proficient as an average person.
To further muddle the story, it turns out that back in 2001, Mr. Kobus went through a divorce with his then wife, and sought counselling. His therapist thought that he still had some issues when he left her service, and she referred him to other therapists for treatment. He felt that he was good enough to continue on with his life, so he didn’t visit any of them.
The defense contends that it’s possible that his 2001 symptoms of anxiety and depression (from his divorce) and really a recurring disorder, and that the reason he has memory troubles is that he’s so anxious because of his disorder that he can’t remember things.
Even more strange are the defense’s suggestions that Kobus has somatoform disorders, where the patient has a mental problem, but instead of experiencing it as depression or anxiety directly and identifying it as such, he feels pain or is unable to move a limb or has uncontrollable twitching. Sound familiar?
All of that is contrary to the testimony given by his family, who said that Craig had no left over issues from his divorce, and that he was a happy and healthy guy before the operation.
There is more, including the testimony of Kobus’ work supervisor, which is one of may favorite parts of the testimony. However, I need a break from typing this long thing, so I think I’ll continue in a new post.
