Dead woman awakens in OR: medical malpractice case?

Is this a valid medical malpractice case?

A story of a medical event got my attention. Colleen Burns took an overdose of medications and was brought to the emergency department of St. Joseph’s Hospital Health Center. A series of mistakes led to a near catastrophe. Colleen had been in a coma after the overdose, but did not meet the criteria for brain death.

There were warning signs Colleen was alive. The day before her organs were to be removed, a nurse performed a Babinski test by scraping the bottom of her foot. Colleen’s toes curled downward. Her nostrils flared in the prep area outside the OR; she was breathing independently from the ventilator she was attached to. Her lips and tongue moved.

Some of the details of her condition have been kept private, but there are indications a physician ignored warnings by a nurse that the patient was alive. Colleen was lying on the operating room stretcher about to have her organs harvested when she opened her eyes and looked at the light. That act allowed her to keep her organs.

Worse, the hospital did not do a root cause analysis investigation into the bizarre circumstances of Colleen Burns’ care until it was prompted to do so by the Department of Health.

Colleen left the hospital 2 weeks later. Her mother said she was never upset about the incident; she was so depressed it did not make a difference to her. She committed suicide 16 months later. Read more about the story at this link.

This is the strange kind of story that made me nervous when I had to go into the morgue with a patient. Stories of dead people sitting up or talking have frightened healthcare providers for years. Does this really happen? We know now that it did to Colleen Burns.

Is this a viable medical malpractice case?

Duty – the staff were responsible to Colleen and had a duty to provide care for this seriously ill woman.

Did they breach their duty? They had a duty to determine that she was dead before planning to harvest her organs. They breached that duty in inadequately assessing Colleen to be sure she was dead.

Did the breach cause damages? Here is where the medical malpractice case falls apart. Colleen did not lose organs. If the staff had gone ahead with the organ harvesting, it is unlikely we would know anything about the signs of life Colleen displayed. Colleen did not suffer psychological damages from the incident. She was not more anxious or more depressed.

Moreover, she did not see it as a second lease on life, an opportunity to be glad to be alive. She was beyond that point. Colleen showed she did not want to live when she killed herself.

Colleen’s family did not file a lawsuit against any of her providers. If they had, I wonder how a jury would react to this story. It is a horrifying one, and even if there were no damages, would a jury be persuaded to award Colleen’s family money? What do you think?

Pat Iyer MSN RN LNCC admits she is afraid of morgues. She is the president of The Pat Iyer Group.