New York Personal Injury Law Blog » Joan Rivers, Medical Malpractice


September 5th, 2014

Joan Rivers Death and ‘Risk of the Procedure’

Joan Rivers in 2010, via Wikipedia

Joan Rivers in 2010, via Wikipedia

The phrase grates on me big time, that a poor medical outcome was a “risk of the procedure.” And so it is now that we see in a couple places with the death of Joan Rivers after she stopped breathing during an out-patient endoscopic procedure, that the phrase “risk of the procedure” is popping up, as if to excuse what happened.

One leading possibility for death, of course, is that it was related to the anesthesia, which Ms. Rivers likely had numerous times considering all the jokes she made about her own plastic surgery.  A sudden allergic reaction wouldn’t exactly be on anyone’s list of possible causes.

At HCP Live, a medical website, they first look at the incidence of cardiac arrest from anesthesia, and it looks positively frightening, by starting out like this:

Although perioperative cardiac arrest due to anesthetics occurs just 10.8% of time, according to the Mayo Clinic, it represents the most serious complication and can have devastating results, as witnessed by the recent death of comedian Joan Rivers.

Wow!!! 10.8% of the time?!?

Well, not quite. That would be 10.8% of all cardiac arrests, which itself are quite rare. Not in the HCP article, but deep into the linked Mayo Clinic article is this:

At the Mayo Clinic, the incidence of arrest primarily attributable to anesthesia was 0.5 per 10,000 anesthetics, which represented 10.8% of cardiac arrests that occurred preoperatively…

So, the incidence of cardiac arrest is actually exceedingly rare.

Moving on, the article starts goes to the potential medical excuses for what might have happened:

The surgery was apparently a minor, elective procedure, but the complications Rivers suffered reminds patients and providers that there are always risks to be considered during surgery. Some of the factors that can increase the risk of cardiac arrest during surgery include coronary artery disease, cardiomyopathy, congenital heart disease, and heart failure.

And what is missing? The failure to properly ventilate or medicate the patient.

Want to know why excusing a bad outcome by simply saying it is a risk of the procedure is so awful? Think about getting hit in the rear by another car while driving. Hey, you knew that others on the road might not be paying attention, didn’t you? Isn’t an auto collision (not an accident) one of the risks of being on the road? Do we excuse that inattentive driver because you knew that being on the road was risky?

Senator Rand Paul pulled a similar stunt with BP’s gulf oil spill, dismissively saying “Sometimes accidents happen.” Sure.  Or maybe the company acted with “conscious disregard of known risks.

Sometimes a deer bolts into the road and can’t be avoided. But sometimes, someone is following too close and rear-ends you because they didn’t leave enough room to stop.

What is the standard here for the Rivers matter in evaluating possible medical malpractice? The standard to look for by investigators, be they New York’s Department of Health (now underway) or the family’s private lawyer, are twofold in looking at the acts or omissions of the medical staff:

Was the act (or omission) a departure from customary and usual medical practice?

Was that departure (or omission) a substantial cause of injury/death?

Simply calling something an “accident” or saying it is a “risk of the procedure” is the type of language that immunity-seekers use (i.e. defense lawyers in the courtroom). But it isn’t the law.

The press should take note in writing stories on the subject, and be careful of the highly dismissive “risk of the procedure” lingo that may flow from some places.

14 thoughts on “Joan Rivers Death and ‘Risk of the Procedure’

  1. Eric: “The press should take note in writing stories on the subject … ”

    Indeed, The Press seems significantly lacking in substantive research these days (if, indeed, not since forever) on many fronts.

    As a licensed Commercial Pilot (inactive) I often cringe at the crap that comes out with respect to an aviation incident. Much of it seems based on what has been seen in recent movies, not on real life.

    As well, as a member of the Internet community since it began, I get the same reaction from Internet-related stories — like the recent “expert” who wondered on live TV about the true identity of “a hacker named 4chan.” Oy!

    And this does not even include the blatant distortions that come from the promoted biases of big corporation media and politics.

    I find it best often to wait — sometimes weeks — for the initial ratings-grabbing (even print media has ratings) to die down on a story before reading anything from those sources. As well, I like to cover a wide range of sources. Yes, I’m even one of the two dozen or so people who sometimes get news from Al Jazeera America.

    As to the death of Joan Rivers, being that the autopsy was reported “inconclusive”, I’m thinking that she came from the generation (and the profession) where smoking and drinking were the social norm, and thus may well have been predisposed to a heart condition. Should the clinic have taken all that into consideration and had the precautions already in place? I do know that my own doctor, when she learned that I had smoked from ages 22 to 25, called it “a history of smoking” and scheduled me for an ultrasound scan for possible abdominal aneurism on that one basis alone (it was negative). I’m wondering if a more conservative approach might have insisted on the endoscopy procedure at a hospital rather than at “a clinic” for reasons of safety.

    No doubt someone will eventually sue someone — because they can, whether or not there is justification.

  2. No doubt someone will eventually sue someone — because they can, whether or not there is justification.

    Maybe yes, maybe no. If reports about her estate are accurate, being roughly $150M, there might be little to gain (on a relative basis). Assuming a surgeon and an anesth and each having $1.3M in insurance. There could be more (for the clinic or for professional corps.) but it is possible that her daughter may find little value in going that route.

    Unless, of course, she demands accountability for the sake of accountability. Anger is a huge motivator for people to call lawyers.

  3. I strongly suspect propofol was used for Ms Rivers care and there was nobody trained in anesthesia involved. Cohen, the principal owner of yorkville endoscopy was principal author of an article in GI Endoscopy from 2003 advocating endoscopist administration of propofol and was the head of a GI task force, which even in 2009 (after Michael Jackson’s demise) was advocating endoscopist propofol administration.

    Reports from the media quoted yorkville endoscopy as stating they had no idea how long Ms. Rivers was hypoxic, indicating strnogly she was inadequately monitored and again pointing to the absence of individuals with specific anesthesia training.

    The report from the EMTs indicated they arrived to find clinic staff attempting to intubate Ms Rivers with the intubation ultimately performed by an EMT.

    All of these findings paint a strong circumstantial case Ms. Rivers may have died like Michael Jackson.

    If Joan did, in fact, die for lack of a simple timely chin-lift/jaw-thrust maneuver or nasal trumpet insertion during propofol administration (possibly mixed with both benzodiazepines and opioids as advocated by Dr. Cohen), this painful fact needs to be not only made public but broadcast in 32 point bold print across the front page of the NY Times. While Ms Rivers estate needs more money like a fish needs a bicycle, the plaintiff’s bar can perform a valuable public service by making sure the facts come to light.

    • The big fly in the ointment of your analysis is the reliance on media reports. The media often get things wrong, based often on a rush to be first with the story.

      Like you, I am very much interested in the “why” and would not be quick to assume that she coincidentally had a heart attack.

  4. Will we ever really know ? Some media reports are now saying she was not having a procedure on her vocal cords at all in that clinic ! This makes sense, since she was performing on stage the night before…running around like an ass without a hole, screeching, screaming and yelling, it is what she did ! And was booked solid for more shows right after the day she died, too. Wouldn’t she need time to recuperate and rest her voice and vocal cords after a procedure on them? In any event, something went horribly wrong and they could not save her. That is precisely why these out-patient clinics are so dangerous. She was 81 ! She may have looked 61 on the outside, but on the inside she was an old lady. Her doctor should have realized this and sent her to the hospital for this intervention. This way, if the patient stops breathing, precious time is not wasted and your chances of survival are so much better !

  5. Actually, the latest out of the NY Daily news is this thing started as an upper endoscopy and there was an ENT in her entourage who asked to use the clinic’s equipment to biopsy her vocal cords when they “found something”. Apparently the endoscopists agreed even though she was never consented for it. I don’t know why you wouldn’t want to secure the airway with a small endo tube before doing something like that. Sounds incredibly stupid to do it without. And that’s even leaving aside the medical ethics and legal issues (the term “battery” comes to mind). Just absolutely incredible the story. Breath taking stupidity if true.

    Judge for yourselves:

  6. I would find it odd that a consent would be signed without an agreement to biopsy abnormal findings.

    Best guess, as with many early press reports, is that some parts of it might be true.

    And bringing your own ENT to a procedure w/o consent? I find that dubious…the endoscopy center must have known the ENT was coming along.

  7. @Eric Turkewitz

    The whole thing is odd. I figured plain old vanilla anesthesia negligence. Common things are common. I had a patient laryngospasm just today with a colonoscopy. With proper drugs, and prompt recognition, it’s eminently fixable.

    But this latest story is just weird. I wonder how anybody could possibly be that stupid. Certainly a qualified ENT surgeon would be attuned to the possibility of laryngospasm and know how to treat, right?!

  8. And now this… comment on the NY Daily News story, with a denial rivers’ vocal cords were biopsied along with a denial general anesthesia has ever been administered at the clinic.

    In truth, these guys likely don’t know the difference between sedation and general anesthesia. Most of the time when we do upper endoscopy with propofol it really is a general anesthetic, though we record it as a “MAC/sedation”. In truth, the patients by necessity are deeply anesthetized and with impaired/absent airway reflexes. You really need that to have good conditions for an upper endoscopy. But the patients are generally not intubated.

    When a patient is unresponsive with no protective airway reflexes, that IS a general anesthetic whether they have an endoctracheal tube or not.

  9. @hkguy – Nonsense. We do endoscopies in our ambulatory center on patients 81 years old, often older, day in and day out sometimes with significant medical comorbidities without getting a result like this. I have practiced in settings from teaching hospitals to community hospitals to freestanding centers, and our resuscitation capabilities for something like this are second to none. But honestly, we seldom get in significant trouble at all, let alone have anything approaching this sort of result. It largely comes down to the judgement of the people involved, rather than the equipment, the drugs, or anything else. It’s always the intelligence of the person using them. And there are plenty of stupid people at teaching hospitals too.