Insurance companies defend their insured doctors from medical negligence claims by trotting out every conceivable argument, hoping that one sticks. So, in medical malpractice cases resulting in wrongful death, the insurance lawyers often question the cause of death. They even rely on ambiguity created by the defendant physician who failed to obtain appropriate tests needed to make the correct diagnosis. In reading today’s news on Joan Rivers cause of death, I thought about my own investigations.
The media reported that the Office of the Chief Medical Examiner described Joan Rivers’ cause of death as “anoxic encephalopathy due to hypoxic arrest during laryngoscopy and upper gastrointestinal endoscopy with propofol sedation for evaluation of voice changes and gastroesophageal reflux disease. The manner of death is therapeutic complication. The classification of a death as a therapeutic complication means that the death resulted from a predictable complication of medical therapy.”
This news should delight insurance lawyers since “therapeutic complication” falls into the category of known and acceptable complications — a ready-made defense to a medical malpractice claim. Having investigated hundreds of deaths in Ohio, I know that there is more to the story.
When we investigate a wrongful death claim, we start by looking at the Death Certificate and, if available, the autopsy. However, the conclusions reached by these are only as good as the examiner and the information available to them. Frequently, the Death Certificate is prepared by the defendant physician, so it can be inherently misleading. The next step is to interview family members and carefully review all available medical records for several months prior to the death. This part of the investigation should reveal key risk factors, medical conditions and symptoms that reveal the true cause of death. Finally, we consult with experts who can explain the natural history of the involved disease process to fill in blanks left by negligent care providers and their incomplete records.
When a coroner is involved, we always speak with the pathologist who performed the necropsy. Ohio law provides a statutory process by which a judge can change the coroner’s verdict if presented with compelling evidence.
Since Joan Rivers died of lack of oxygen to the brain following throat surgery, I would scour her medical records to see how she was being monitored (e.g., pulse oximetry), what her underlying health was like (e.g., heart disease), what medications were given to her, how her airway was secured, and what efforts were made to resuscitate her. Therapeutic complication or not, it would be interesting to know if her arrest was timely detected and appropriate resuscitation efforts promptly undertaken. And, of course, I would want to know why she arrested in the first place.