$3 million Dollar Settlement Medical Gas Line Mix-Up/ Anoxic Brain Injury
Goza & Honnold represented an eighteen year old high school senior who went to an oral surgeon’s office to have his wisdom teeth extracted. He suffered a respiratory arrest. He was taken by ambulance to a local hospital then transferred by life-flight to a regional medical center. He was diagnosed with anoxic encephalopathy or brain damage from lack of oxygen. An investigation revealed that the nitrous oxide tank in the oral surgeons “bottle room” had actually been connected to the oxygen line. The young man was in a coma for two months during which time he was transferred to a specialty rehabilitation hospital. With the help of a dedicated staff and his own tremendous effort, he made a remarkable recovery. He was able to walk and talk, but remained cortically blind with brain damage and spasticity.
A number of parties were named as defendants. Early in the year, we were able to reach a settlement with the installing plumbers for their policy limits of three million dollars. Later, we participated in a mediation during which we were able to reach a settlement with the other parties for a confidential amount.
Plaintiff was a healthy eighteen year old high school senior when, on March 30, 2009, he went to oral surgeon’s dental office to have his wisdom teeth removed. Less than an hour later, plaintiff had suffered respiratory arrest, been taken by ambulance to local hospital and later by life flight to regional medical center. Patient was diagnosed with “anoxic encephalopathy”- brain injury from lack of oxygen. During his first few days at medical center, plaintiff’s life literally hung in the balance. His condition eventually “stabilized”, but he remained in a coma for the next two months.
Plaintiff was ultimately transferred to the Rehabilitation Hospital. With the help of dedicated staff and his own tremendous effort, plaintiff made a remarkable recovery. He is now able to talk and walk with assistance. However, he remains cortically blind, has brain damage and spasticity, and is functionally disabled. These damages are permanent.
Immediately after this incident, a simple test was done that showed the nitrous oxide tank in the “bottle” room had actually been connected to the oxygen line. As a result, when the oral surgeon placed the “oxygen” mask on plaintiff he was giving him pure nitrous oxide. This was tantamount to placing a pillow over plaintiff’s face and suffocating him. Plaintiff was deprived of oxygen for over twenty minutes.
This case was made all the more tragic because of the numerous checks and balances that were in place under the law and relevant codes to prevent against this specific type of incident. Unfortunately, those requirements were not adequately spelled out by the professionals who were aware of the requirements, were not known by some of the professionals or just simply ignored. We believed strongly that we would have no trouble convincing a jury that a young man should not go to a professional’s office to have his wisdom teeth removed and come out blind, brain damaged and disabled without a number of having people failed to do their jobs.
APPLICABLE ORDINANCES AND CODES
The City in which this had occurred had adopted the International Plumbing Code.” The International Plumbing Code adopts the NFPA99C as it pertains to medical gas systems. Tthat the NFPA 99C 2005 Edition sets forth the applicable requirements which it state in pertinent part:
•1) 220.127.116.11.2 – The installers of Level 3 medical gas systems shall be qualified under the requirements of AASE 6010, Professional Qualifications Standards for Medical Gas Systems Installers.
•2) 18.104.22.168.3.2 – Main branches and drops to individual service outlets in Level 3 oxygen piping systems shall be not less than DN10 … size, but at least one size larger than the piping for nitrous oxide.
•3) 22.214.171.124.4 – Pipe labels shall be located as follows: On both sides of walls or partitions penetrated by the piping.
•4) 126.96.36.199.1 – The tests required by 188.8.131.52.1 through 184.108.40.206.12 shall be performed prior to the tests listed in 220.127.116.11, System Verification, by one or more of the following:
•(1) The installer
•(2) A representative of the system supplier
•(3) A representative of the system manufacturer.
•5) 18.104.22.168.6 – The inspection and testing reports shall be submitted directly to the party that contracted for the testing, who shall submit the report through channels to the responsible authority and any others that are required.
•6) 22.214.171.124.1.4 – Verification testing shall be conducted by a party technically competent and experienced in the field of medical gas and vacuum system verification and meeting the requirements of ASSE 5030, Professional Qualifications Standard for Medical Gas Systems Verifiers.
•7) 126.96.36.199.1.5 – Verification testing shall be performed by a party other than the installing contractor.
All of these code requirements for testing, labeling and independent verification are designed to prevent medical gas “mix-ups”- which is exactly what occurred in this case. Unfortunately, not one of these steps were taken to ensure that any of these code requirements were complied with.
The defendants in the case included the plumbing company, the oral surgeon, the general contractor, the architectural company, the engineering company, the equipment supplier and the City. The oral surgeon and general contractor had filed cross-claims against each other. The architect had never designed an oral surgery office with a medical gas delivery system. The engineer had never designed a medical gas delivery system. The general contractor had never installed a medical gas delivery system and was not aware of the NFPA 99C requirements. The NFPA 99C required that medical gas piping be put in only by certified installers
The City required that a third- party verification be performed by an independent third-party on any medical gas delivery system. After this incident they amended their code to also require that the verification be documented before an occupancy permit would be issued.
We felt each of the defendants has to concede the regulatory requirements for labeling, testing and verification, and the fact it simply was not done in this case. The defendant would likely have been left with limiting factually their involvement in the process and to assert that compliance with these requirements was the responsibility of one of the other defendants.
The pipes changed from ¾ to ½ inch as they dropped into the bottle room. All of the pipes were the same diameter size as they entered the bottle room. We argued the defendants should have known that this was not compliant with code requirements which state that the oxygen lines must be at least “1/4” diameter larger than the nitrous oxide lines. This would make it almost impossible to incorrectly connect the lines.
We also argued the mechanical and engineering plans were inadequate. There was nothing on the plumbing spec sheet that specifically addressed the medical gas piping alone. There was no specific reference to the NFPA 99C. There was also no reference to any testing requirements on P2.1. The only specification as to the piping was that it be type L copper which was normally used for domestic water lines. We argued these plans should have contained detailed specifications setting forth that the oxygen and nitrous oxide lines should be different sizes, specifying only medical gas piping should be used, setting forth the required installer credentials and the testing and verification requirements.
We argued as well that there was significant miscommunication between the parties. Ultimately the plumbers assumed the site plans had been modified to reflect the actual order in which the gas lines had been installed. Unfortunately changes had been made in the field which were not reflected on the plans. In fact, there was never a construction document on site that reflected how the pipes were actually installed.
We contended that the contractors had failed to perform adequate inspections which would have revealed the installation did not comply with code. The IPC required all pipes coming into a room be labeled. The pipes were not labeled. Knowing this was required by code, we argued the engineers failed to look at the bottle room, or looked and failed to note the lines were not labeled.
The drywall was hung by December 17, 2008. The City’s final inspection was done on February 26, 2009 before the manifolds and tanks were on site. No one ever called the city to inspect the gas lines after the manifolds were installed.
The engineer and general contractor took the position that the installation of the manifolds and the hook up of the tanks were not part of his scope of “work” under the contract. However, we argued that the general asked to have the plumbing contractor he hired do the work. The general also actively participated in and supervised the work. Regardless of whether it was initially required under the contract, we stated he undertook to do the work and had a responsibility to do it correctly.
The oral surgeon had made sure the system was functioning but did not test the system and never saw the plumbers test it to see if it worked correctly. Our position was that oral surgeon should have performed the test which was easy and could have been done by simply turning off the oxygen in the bottle room, going into the patient’s room and turning the oxygen on and seeing if air came out. The AAOMS published guidelines state that the oral surgeon should test the system to protect against plumber error. The oral surgeon would have been the patient’s last protection against plumbing error.
Plaintiff was hospitalized for 29 days and given a final diagnosis of cardiac arrest and anoxic brain injury during his hospitalization he had a peg two placed, a tracheostomy and a super pubic catheter placement.
Plaintiff was transferred to the Rehabilitation Hospital for continued therapy. He was diagnosed with severe hypoxic brain injury, cognitive and behavioral impairments and deficits in mobility and self-care. Plaintiff ultimately came out of his coma and made substantial progress. However, upon discharge he was noted to have severe hypoxic brain injury, cognitive and behavioral impairment and cortical visual impairment along with hypertonicity.
Plaintiff spent several months at the Midwest Rehabilitation Institute and then went to the Kansas State School for the Blind. He continued to have both cognitive and physical difficulty because of his traumatic brain injury and severe limitations with hand mobility and tactile sensitivity meaning he was been unable to learn brail.
Plaintiff is cortically blind which means his eyes can see but his brain cannot process images. This is a permanent condition.
We retained an expert to put together a life care plan in this case. Plaintiff’s damages included hundreds of thousands of dollars in past medicals and potentially millions of dollars for future care and lost income.