In March 2004, Jean Hensley arrived at Cookeville Regional Medical Center in Cookeville, Tenn., for surgery to remove an intrathoracic goiter. The anesthesiologist, Robert Cerza, MD, planned to use a 12mm double-lumen tube to deflate a lung to make more room in the chest cavity during surgery.

After introducing the tube into the patient's throat, the tube hit resistance. Dr. Cerza paused, grunted and began shoving so hard that his hands turned white. The force caused a large laceration in which the trachea essentially "unzipped," according to court documents. The OR nurse grimaced when she saw the tube being forced down. The surgical tech said it was the first time he'd seen additional force used when the anesthesia provider met resistance during an intubation.

As a result of the laceration, Ms. Hensley had to have emergency surgery to repair the tear and undergo a long, painful recovery period. In 2006, she sued Dr. Cerza for medical malpractice and negligent retention on the part of Cardiac Anesthesia Services for hiring Dr. Cerza.

Who could better say if this was appropriate care? The OR nurse — who had seen hundreds of intubations and grimaced this time when she saw the anesthesiologist pushing — or a physician expert witness who wasn't there?

Whose opinion counts?
In the OR, physicians run the show, but nurses and techs are encouraged to speak up if they see something going wrong. In the more enlightened ORs, a surgical tech can halt a procedure just by saying, "Stop." In the courtroom, this isn't always the case. Not all witnesses have the same weight. Indeed, sometimes a nurse's or tech's interpretation of what happened in the OR can be excluded from testimony presented to the jury, while a physician-expert who wasn't in the OR at the time of the incident can offer opinions on facts and data presented.

When this lawsuit went to trial last year, both sides presented their versions of what happened and testimonies from expert witnesses. The plaintiff called on the cardiothoracic surgeon who repaired the damaged trachea as well as an out-of-state anesthesiologist who served as an expert. The plaintiff also called on the OR nurse and tech who watched the intubation. The trial judge allowed only certain testimony from OR nurse Lisa Poe, RN, and tech Jimmy Brock to be presented to the jury because they were not experts in intubation. For example, the OR team members were not allowed to say things such as "he crammed the tube in," the plaintiff's lawyer, Stephen Knight, told Outpatient Surgery Magazine. In pre-trial testimony, Mr. Brock had said that Dr. Cerza met "quite a bit" of resistance and that it was the first time that he'd seen an anesthesiologist increase the amount of force used when he met resistance during intubation.

In court, the plaintiff's expert witness, anesthesiologist Dennis Doblar, MD, said that Dr. Cerza used too much force when inserting the tube. When he met resistance, he didn't stop or take the tube out or breathe for the patient with a mask. "He continued to push on the endotracheal tube and that resulted in a laceration of virtually the entire length of the trachea," Dr. Doblar said in court documents.

Small trachea
On the defense side, Dr. Cerza claimed that Ms. Hensley's trachea was unusually narrow for someone of her size and age. He said the injury wasn't his fault since none of the pre-op documents mentioned the trachea size and no one had told him. How could he know that a 12mm double-lumen tube would cause injury because it was too big?

The defense's radiologist expert witness said that on first glance, the plaintiff's trachea looked like it was a normal size on the CT scan. "If I was reading a stack of 30 CT exams, [I] would not have commented on the trachea being narrowed, but if you measure it, it measures 11mm across," said Dan Cotton, MD, in court documents.

The cardiovascular surgeon who performed the emergency surgery to repair the trachea agreed that the films showed a smaller trachea. "So in retrospect, this is probably not the best tube," said Lewis Wilson, MD, in court documents. An attorney for Dr. Cerza did not respond to a request for comment for this article, and attempts to reach Dr. Cerza were unsuccessful.

At the end of the trial, the jury returned a verdict in favor of Dr. Cerza. Four months later, the plaintiff appealed, complaining that the trial court had made errors on what testimony was, and was not, presented to the jury.

On appeal
In the end, the appeals court declared that the entire testimony from the nurse and tech shouldn't have been excluded. Testimony from experienced OR team members who were in the room during the intubation would help establish what really happened. "Both had seen many intubations and were, therefore, able to compare the amount of force applied by Dr. Cerza to the force they had seen applied by other anesthesiologists. This evidence appears to be rationally based on the witnesses' perceptions and helpful to a clear understanding of what happened during the intubation," said the appeals court. "If a lay witness testified that Dr. Cerza applied 'excessive' or 'improper' force, that testimony would properly be excluded."

The appeals court said that exclusion of the testimony probably didn't affect the outcome of the jury trial, because the jury was still able to hear from the surgical tech that the anesthesiologist grunted and that his hands turned white during the intubation, which gave the jury a good sense of the amount of force used, said the appeals court in its opinion issued in August.

Ms. Hensley's attorney disagrees. While the plaintiff's expert anesthesiologist opined that Dr. Cerza used too much force, including testimony from the nurse and tech with the same opinion would be more than just duplicating what the expert said. In this case, "additional evidence is corroborative," says Mr. Knight, who is taking the appellate ruling to the Tennessee Supreme Court. The court should decide early next year whether it will hear the case.