Tyson Horton Story Part III -- OHSU's Response to Medical Errors
Over the past two weeks we've reintroduced you to 13 year old Tyson Horton and told you the story of a never event that almost took his life when he was only nine months old and forever changed his life, the life of his mom, Lori, and everyone else involved in his care, including the surgical team. It's a tough story to hear or read about...Tyson's liver was literally cut on the wrong side by a Fellow/surgical resident, the bleeding was so profuse that Tyson's total blood had to be replaced over 20 times, and ultimately his liver died and Tyson needed a transplant from mom (Lori) to save his life, only for Tyson to face a mountain of medical complications.
This week we want to discuss the response of Oregon Health & Science University (OHSU), a major teaching hospital, to this tragedy.
In September 2009, Tyson was admitted to OHSU to have a cancerous tumor removed from his liver. As Lori wrote in her Caring Bridge Journal, she and her husband thought the surgery was going smoothly and were given no reason to suspect anything was wrong. They received positive update phone calls from the nurses throughout the surgery. Four hours after the operation began, the surgeon came out to meet with them. Lori was expecting to hear everything went great, Tyson is in recovery, etc. Instead, the surgeon took Tyson's parents to a separate room, sat down, and explained that the surgical team -- which included a Fellow/surgical resident doing the cutting -- had gotten on the wrong side of the liver and had literally cut the wrong veins. Lori explained that the surgeon was extremely humble, showed remorse, didn't withhold information, didn't shift blame, expressed that he didn't know how the error happened, and disclosed that Tyson bled uncontrollably on the table for 45 minutes before they realized something was wrong. The surgeon offered to answer additional questions on the spot but Lori said there would be time for that later -- he just needed to get back to the operating room to save Tyson's life.
The next couple of days were a blizzard of activity -- including several additional surgeries at OHSU -- to stabilize Tyson, but he continued to decline. Sometime over the next day or so, Lori and her husband met with a room full of people from OHSU, including the surgeon, the Fellow (surgical resident), OHSU's risk manager, and legal counsel. The surgeon was again humble and open, even hand drawing diagrams to show where the wrong cuts were made. The Fellow remained silent throughout the meeting. Moreover, the Fellow never met independently with Lori or her husband to express remorse or accept responsibility for the errors.
On the third day after the errors, Tyson and Lori were medivacked to Stanford; OHSU could no longer help Tyson. While at Stanford, the OHSU risk manager flew down from Portland to Palo Alto, CA to meet with Lori and her husband, and delivered terrible news: The hospital's liability limits per Oregon law were capped at $3M -- including economic damages -- for a government organization such as OHSU, and the family was on their own beyond $3M. Never mind that OHSU had settled several cases a few years prior to Tyson's injuries in excess of the cap. This was devastating information for a family doing everything possible to keep their son alive. In fact, the risk manager told the family they would need to hire an attorney to challenge the Oregon cap. Lori and her husband were shocked.
The family retained counsel. Their attorney waited until September 2011 -- just before the statutes expired --- to file the lawsuit. The Horton family and their attorney honestly believed OHSU would try to make the situation right (again, OHSU had settled cases for over $3M, including $9M plus for a brain-damaged baby), but there was nothing but silence, aside from discovery, for two years.
According to Lori, OHSU did not admit fault to the court for the medical errors that nearly killed Tyson until their September 2013 trial --- four years after the error-ridden operation. Lori said the trial was basically a battle of experts arguing -- and guessing -- the past, present, and future damages done to Tyson and their family. Ironically, throughout the trial the surgical Fellow (who cut the wrong veins) and Lori were forced to sit next to each other, but the Fellow spoke nothing of the errors and did not apologize to Lori or the family. Instead, Lori said they made very awkward small talk.
The Horton family attorney asked the jury for $30M, while OHSU's attorney told the jury $8M was fair value for the case. The jury awarded $12M to the Horton family. Instead of negotiating with the family, OHSU immediately appealed the ruling to the Oregon Supreme Court to enforce the statutory cap of $3M. For the third time in this column, OHSU had settled other cases above the cap prior to Tyson's case. In 2016, the Supreme Court, in a split decision, reduced the award to $3M, citing the cap that state facilities in Oregon can pay no more than $3M for medical errors. OHSU claimed a legal victory in the press, while Tyson's family faced collections and bankruptcy. Moreover, Lori and her family were exposed to public jeers in social media, chastising them for being greedy for wanting more than $3M. Never mind that Tyson and Lori had racked up $5M in unpaid medical bills and faced a life-time of expensive continuing care and an uncertain future for Tyson. Never mind that the family had experienced extreme pain and suffering, and more would likely come. The social media experts thought Lori was greedy and OHSU didn't bother to defend the family. Lori shared with me that the trial and appeal process brought more pain and financial harm to their already damaged family.
Unbeknownst to Lori, after the Supreme Court's ruling, OHSU and Stanford reached an agreement for OHSU to pay the family's outstanding medical bills for pennies on the dollar. So, in the end, the Horton family was rescued from bankruptcy, but they continue to worry about Tyson's health every day and are forced to pay out of pocket for partially covered, expensive medical care to monitor Tyson's health. And they never received a nickel for their pain and suffering, past, present, or future.
What a tragedy. The surgeon who met with the family showed ethics and humility, but the rest of the OHSU leadership team was mostly missing in action. How could they do this to a family of a little boy they almost killed? Why didn't someone -- anyone -- step up and make this situation right by the family? Why did OHSU wait until the end -- after dragging the family through an exhaustive trial and appeals process -- to figure out a way to pay the family's past bills? If, instead, the organization had been pro-active, could money and resources been saved that not only would have paid the past bills, but also future bills and provide some monetary relief for pain and suffering? Moreover, how could hospital administrators allow their attorneys to further injure the reputation of their organization? Sure, they "won" a legal victory and saved the hospital some money, but how much more money was lost in bad publicity? How many patients looked elsewhere for care? How many physicians referred patients elsewhere because of Tyson's case?
Reflecting deeper, it looks like the surgeon was (and is) very ethical, and the hospital began to follow his lead until the attorneys highjacked the process. This happens in a lot of hospitals where the front-line staff and some administrators follow their hearts, until the attorneys jump in and rescue defeat from the jaws of victory. Indeed, how could the risk/legal team tell the Horton family to sue OHSU to jump the $3M cap when OHSU, on their own, had settled cases in excess of the $3M cap? Hospitals that don't have plans to resolve cases ethically can do the initial empathy piece well (which appears to have happened in Tyson's case), but then completely fail in the resolution process. If instead of playing "legal," what could have been done if OHSU had sought to partner with Tyson's family, not only to meet financial needs but also improve care for future patients?
What would you do if this case happened in your hospital? Would you do what is "legal," or would you do the right thing? When something goes wrong in your facility, who is leading the response...leadership and your medical staff or your attorneys? If you desired to "do right" by a family, would you know how to pull it off? Would you have a program in place to make sure what happened to Tyson and his family never happens to the patients/families entrusted in your care? Do you have an updated, well-written disclosure policy, has your clinical staff been trained in disclosure, do you have a team to support your clinical staff through difficult post-event conversations, does your leadership team believe in ethically resolving cases and know how to do it, and does your legal team (both internally and externally) believe in disclosure?
Next week we will give you Lori's perspective on the surgeon and the surgical resident/Fellow.
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Thank you,
- Doug
Doug Wojcieszak, MA, MS
President and Founder
Sorry Works, a 501c3 patient safety organization
618-559-8168 (direct dial)
doug@sorryworks.net