VA Hospital Ruled Not Liable for Medication Error of Contract Anesthesiologist: Bethel v. US, Court of Appeals

A lawsuit, Bethel v. United States, sought to hold the federal government liable for a medication error at a Veterans’ Affairs (VA) hospital that allegedly caused a man severe and permanent brain damage. The anesthesiologist directly accused of the error was an employee of a state hospital who, pursuant to a contract between the two institutions, was working at the VA hospital that day. A federal district judge held that the VA was vicariously liable for the anesthesiologist’s negligence even without a direct employer-employee relationship, and ruled for the plaintiffs after a bench trial. The Tenth Circuit Court of Appeals reversed the finding of vicarious liability and remanded the case to the trial court to apportion liability among the other defendants.

David Bethel was admitted to the Veterans Affairs Medical Center (VAMC) in Denver, Colorado on September 10, 2003 for surgery. The anesthesiologist, Dr. Robin Slover, was an employee of the University of Colorado School of Medicine (UCSM) assigned to work at VAMC. A VAMC employee, first-year resident Dr. Nicole McDermott, assisted Slover during the procedure.

Prior to the procedure, Bethel began to complain of difficulty breathing. The court states that it is not clear what drugs, if any, he had received at this point. McDermott and another resident had to restrain him while Slover returned from another room. Slover administered a paralytic drug called Rocuronium and several other drugs in order to render Bethel unconscious. Bethel eventually needed a tracheotomy to allow breathing. He remained in the hospital until January 2004. Cardiac arrest and a lack of oxygen caused a hypoxic-ischemic brain injury, which has rendered him unable to provide for his own needs or care for himself. The trial court eventually concluded that the drug Rocuronium caused Bethel’s operating room symptoms, and that someone gave it to him by mistake after Slover prescribed a different drug.

The anesthesiologist was unable to make notes during the anesthesia process, in order to record any and all drugs and fluids given to the patient, because of the emergency situation. Slover and McDermott reportedly tried later that day to create a record based on data from the monitoring machines, but they had been turned off at the time. The only written record of the event was Slover’s report submitted later.

Bethel’s wife, as Bethel’s guardian and on her own behalf, sued VAMC and several doctors, including Slover and McDermott. A district judge found VAMC vicariously liable, even though it was not Slover’s employer. The judge based this decision on factors like the right of VAMC employees to give work assignments to Slover, Slover’s authority to supervise VAMC employees like McDermott, and Slover’s inclusion among the “Medical Staff” of VAMC. The judge also found that apportionment of fault among the other defendants was impossible because of the lack of documentation. He entered a verdict against the defendants for more than $10 million.

The appellate court, citing the Federal Tort Claims Act (FTCA), held that the trial court erred by finding the federal government vicariously liable for Slover. It noted that the FTCA appears to exclude suits against the government for independent contractors’ acts, and it requires a careful test for determining whether an individual is an employee or not. The fact that Slover had the right to contract elsewhere was dispositive for the court in determining that Slover was a contractor, not an employee. As a result, the Bethel’s claim against Slover failed because they did not follow the requirements of Colorado’s tort claims law. The court remanded the case to the district court with instructions to find a way to apportion fault among the defendants.

The Maryland attorneys at Lebowitz & Mzhen can assist victims of medication errors, who have been injured by drugs prescribed, dispensed, or administered incorrectly. Contact us today online or at (800) 654-1949 for a free and confidential consultation to discuss your case.

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Insurance Company Denies Accidental Death Benefits, Arguing that Man’s Death from Medication Error Was Not an “Accident”: Estate of Paul v. New York Life Insurance Company, Pharmacy Error Injury Lawyer Blog, September 27, 2012
Jury Awards $12.6 Million to Teenager Who Lost Her Limbs Due to Vaccination Error, Pharmacy Error Injury Lawyer Blog, January 26, 2012

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