The Bleaker Case
James Bleaker presented to the VA Hospital for a pre-operative work-up before a scheduled outpatient surgery. While in the pre-operative testing area, Mr. Bleaker was found to be in atrial fibrillation, A-fib, and was determined to be a high fall risk. Mr. Bleaker had a history of alcohol abuse and was discovered to be intoxicated on the day of his surgery. As a result, his operation was postponed, and he was admitted to the Hospital to monitor his A-fib and potential symptoms of alcohol withdrawal. While admitted to the Hospital, due to his condition and per Hospital policy, Mr. Bleaker was to have assessments done every two hours to monitor his withdrawal symptoms. However, these assessments were not completed per the Hospital’s own policy, and his symptoms of withdrawal worsened without recognition and without the proper interventions. As Mr. Bleaker’s condition deteriorated, he suffered a fall with seizure activity, a known symptom of alcohol withdrawal. Mr. Bleaker hit his head during the fall, which resulted in an intracranial hemorrhage and ultimately his death.
Mr. Bleaker was a 56-year-old Marine Corps veteran. After serving in Desert Storm and spending time in the reserves, Mr. Bleaker worked as a plumber. While Mr. Bleaker had a history of alcohol abuse, he was actively involved with his family and gainfully employed. The events leading up to his untimely death forced him to recognize his problem, and he finally came to terms with the fact that he needed help to address his alcohol dependence. Unfortunately, he passed away before he had the opportunity to get that help.
Mr. Bleaker presented to the VA Hospital on September 5, 2019 for a scheduled pre-operative work-up before an outpatient left eye cataract surgery. During his visit, he was found to be in new onset A-fib with rapid ventricular response. While in the pre-operative testing area, Mr. Bleaker was determined to be a high fall risk.
Mr. Bleaker had a history of alcohol abuse, and on this day, he had a positive Breathalyzer test that showed a blood alcohol level of .091. His blood work showed that his blood alcohol level was even higher than .091 at the time. In the Emergency Department, Mr. Bleaker admitted that his last drink was during the evening on September 4, 2019, the night prior to presenting to the VA Hospital. After being assessed by the Emergency Department physician, the decision was made to admit Mr. Bleaker to a telemetry unit at the VA Hospital specifically to monitor his A-fib and his potential for symptoms of alcohol withdrawal.
The Hospital’s policies regarding the prevention and management of alcohol detoxification and withdrawal state that in the specific unit where Mr. Bleaker was admitted, a Clinical Institute Withdrawal Assessment, CIWA, must be performed every two hours on a patient in Mr. Bleaker’s condition. However, in direct violation of the Hospital’s policy, CIWA scoring was ordered to be conducted every six hours, i.e. three times the length of the policy requirement.
The Hospital’s CIWA policy is an accurate characterization of the standard of care for patients who have been determined to be high risk for experiencing alcohol withdrawal and require telemetry monitoring, such as Mr. Bleaker. The policy was written in such a way because it is known that a patient like Mr. Bleaker can experience symptoms of alcohol withdrawal that get significantly worse in just 2 hours, and in his case, it was documented that his symptoms of alcohol withdrawal were in fact getting worse as he got farther away from his last drink.
On September 6, 2019, at 7:52 a.m., Mr. Bleaker suffered a fall with seizure activity, which resulted in a severe intracranial hemorrhage. After being found post-fall with blood coming from his head, Mr. Bleaker was transferred to the Intensive Care Unit where he never regained consciousness.
Though surgery was possible, it likely would have resulted in a poor outcome; therefore, Mr. Bleaker’s family along with his physicians, in correspondence with his Living Will, made the difficult decision to not move forward with surgery and transition him to comfort measures only. Mr. Bleaker was pronounced dead on September 7, 2019. Mr. Bleaker’s untimely death was attributed to his fall.
Between Mr. Bleaker’s history of falls, history of substance abuse, A-fib, and worsening symptoms of alcohol withdrawal, he was a clear fall risk and should have been monitored as such. However, the Hospital and its staff negligently failed to protect him from harm and failed to ensure his safety while he was admitted to the Hospital.
Since this was a medical malpractice lawsuit against the VA Hospital, which is a government entity, the Federal Torts Claims Act, FTCA, applied and this case was* litigated in federal court*. Claims against the VA Hospital are filed in a unique manner that is different from typical medical malpractice litigation. First, a Form 95 must be completed and sent to the appropriate government office within two years after the malpractice is committed describing the malpractice that occurred and outlining the injuries and amount of compensation sought. After the Form 95 is submitted, the VA has an opportunity to issue a response to the claim and either accept the claim and settle the case out of court or deny the claim. If the claim is denied by the VA, a lawsuit must be filed in federal court within 6 months. In Mr. Bleaker’s case, the VA denied his claim, and the case proceeded to federal court.
While there were limitations to this case, the negligence of the providers at the VA Hospital was clear. A Physician’s Assistant negligently ordered a CIWA to be conducted every 6 hours in direct violation of the hospital’s policy, the nurse carrying out the policy was negligent for carrying out the order, and the attending physician was negligent for signing off on an order that was in violation of the standard of care and hospital policy. Per their deposition testimony, neither the PA nor the nurse even knew that the hospital policy existed. We made a point to highlight the Hospital’s failure to educate its medical personnel on the Hospital’s policy and its failure to enforce that policy through deposition testimony and written discovery (i.e., Interrogatories).
As is often the case when there is clear negligence, the Defense will try to distract from the real issues of the case and find reasons why the victims of malpractice do not deserve to be compensated. This case was no different. The Defendant wanted to emphasize Mr. Bleaker’s issues with alcohol abuse. Essentially, the Defendant intended to show that Mr. Bleaker was unworthy of an award. However, we did not shy away from Mr. Bleaker’s issues with alcohol, as it was no secret that he had a drinking problem. Even so, Mr. Bleaker was able to regularly maintain a job as a plumber and lead a meaningful life. In discovery, we obtained employment records that showed Mr. Bleaker was a hard-working and respected employee. Further, Mr. Bleaker’s alcohol abuse made him even more of a candidate to be closely monitored by hospital staff.
We had an experienced economist expert prepare a report to calculate the potential economic loss resulting from Mr. Bleaker’s untimely death. We also had medical and nursing experts prepare reports describing in detail how the decision to conduct CIWA assessments every 6 hours, instead of every 2 hours as the Hospital’s policy requires, increased the risk that Mr. Bleaker’s worsening symptoms of alcohol withdrawal would go unnoticed and result in a fall causing his death.
It has been our experience that we are much more successful in cases where a hospital’s staff violates the hospital’s own policy as it naturally frames the Defendant caregivers as “rulebreakers” as the theme of the case. Mr. Bleaker’s case fit that mold.
Prior to trial, we reached an agreement to settle the case for a substantial amount.