US admits anesthetist at Marion VA breached duty of care; Patient ‘prayed for death’ during surgery without anesthesia

By Heather Isringhausen Gvillo | May 23, 2018

An anesthetist with the VA Medical Center in Marion breached the standard of care when a patient did not receive anesthesia during surgery, the government admits in court.

An anesthetist with the VA Medical Center in Marion breached the standard of care when a patient did not receive anesthesia during surgery, the government admits in court.

Assistant U.S. attorneys Donald Boyce and Suzanne Garrison filed a response to plaintiff James Wesley Hack’s motion for summary judgment on May 22, agreeing that a breach of the standard of care occurred with regard to the administration of inhalational anesthesia. However, they noted that other medications were administered during the surgery "that had the effect of reducing pain and recall."

“The United States agrees that the issues remaining to be litigated pertain to the valuation and availability of compensation for non-economic losses,” the response states.

Hack filed his motion for summary judgment on the issue of liability through attorney Patrick Murphy of Murphy & Murphy LLC in Marion. Murphy is a former district judge at the Southern District of Illinois where the case is being litigated.

Murphy argues that the defendant admits that the certified registered nurse anesthetist assigned to the plaintiff's surgery did not discover that Hack was not receiving the Sevoflurane until the surgeon informed him that the patient’s leg was moving.

In a memorandum of law in support of Hack’s motion for summary judgment, he argues that the defendant admitted that the CRNA assigned to his surgery failed to monitor the anesthesia flowchart, which showed that he was not getting the prescribed medication.

“[S]o for 76 minutes Mr. Hack, while completely lacking the capacity to communicate, experienced all of the stripping, cutting, filing, and cauterizing required to complete the surgery,” the plaintiff’s memorandum of law states. “He will testify that he prayed for death so that the pain would stop.”

“In short, the standard of care is established and was plainly breached,” the motion for summary judgment states. “The breach proximately caused unnecessary and unbearable pain to the plaintiff and all that remains is for the trial judge to assess damages. The plaintiff requests that the court grant him summary judgment on the issue of liability against the defendant and set the matter for trial on damages only.”

Hack filed his complaint on Oct. 2, alleging that on Feb. 2, 2016, he visited the Marion VA Medical Center for podiatric surgery consisting of a right side Achilles tendon reattachment and calcaneal exostectomy.

Hack’s memorandum of law in support of his motion for summary judgment states that “the surgeon did a fine job and the surgery was successful.”

However, the suit states that the CRNA failed to provide the anesthesia Hack was scheduled to receive during surgery, failed to properly set up and monitor the vaporizer that was essential for delivering the anesthesia and failed to monitor the gas monitor or flowchart.

Hack seeks a judgment of $5 million, plus court costs.

U.S. District Court for the Southern District of Illinois case number 3:17-cv-1060

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Murphy & Murphy U.S. District Court for the Southern District of Illinois

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