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Joan Rivers' Endoscopy center faulted for violating standards of care- Scathing report by Feds

It's out.

The Department of Health & Human Services investigation into Joan Rivers' death rips the endoscopy center on multiple fronts.

The 22 page detailed report is graciously plastered on the NY Daily News website for all to see. I highly recommend reading it.

The report explains who the federal investigators spoke to and what they reviewed in order to reach their conclusions...

Investigators reviewed

  • Joan's medical records
  • Policy and procedures of Yorkville endoscopy center
  • Interviews with staff members

VIOLATION #1:

The endoscopy center failed to have procedures in place to ensure that only authorized and credentialed doctors and staff are permitted on site and in the procedure room.

VIOLATION #2:

The endoscopy center failed to have procedures in place to ensure that only authorized and credentialed doctors are permitted to perform procedures.

VIOLATION #3:

The endoscopy center failed to have procedures in place to ensure that proper informed consent is obtained for all procedures performed.

As a result of these signficant findings, the federal investigators determined that these compromised patient safety and "an immediate jeopardy" was declared on 9/3/14. In response to these scathing violations, the endoscopy center has confirmed their intention to correct and fix these glaring problems.

Based on interviews, review of medical record
and other documents, it was determined that the
Governing Body and Management failed to
provide adequate oversight and monitoring to
ensure compliance with the facility's policies for
providing patient care services and that patient
care services are provided in a manner that
protects the health and safety of patients.
Specifically, the facility
failed to ensure (1) that surgical services were
provided by a qualified physician granted privilege
at the facility; (2) the implementation of the
facility's policy and procedure on "Time Out" to
assure patient's safety; (3) continuous
assessment and treatment of patient's medical
condition in accordance with generally accepted
standards for medical practice.

Here's the findings...

Patient #1 is an 81-year-old female who
presented to facility on 8/28/14 for a scheduled
EGD (Esophagogastroduodenoscopy).

Without actually naming who patient #1 is, we know that it's Joan Rivers based on her age, 81 and the date she had her endoscopy procedure at this endoscopy center.

...the patient's medical record indicated
the patient underwent a Nasolaryngoscopy (A
diagnostic procedure that examines the nasal
passageways and the area between the cavity of
the mouth and the throat to the muscular
passage connecting the mouth with the stomach)
prior to the EGD and another Nasolaryngoscopy
after the EGD was completed.

What does that mean? 

It means that she was supposed to have a fiber-optic tube inserted down her throat into her stomach. However, a different procedure was done compared to the one she was supposed to have. This is because Joan's ear nose and throat doctor was brought into the edoscopy center to perform a look-see. 

There was only one big problem...

Joan's ear nose and throat doctor was not credentialed to do any procedure at this facility. Nor did she obtain any written consent from Joan to actually do this procedure. These are two big violations from the standards of care that were referred to earlier by this federal investigation.

Here's the wording in the report...

At interview with Staff # 3, Interim Medical
Director of the facility on 9/2/14 at 3:50 PM, he
stated the ENT surgeon that performed the
Nasolaryngoscopy was not a member of the
Medical Staff and was not privileged at the facility.
...the ENT surgeon is not privileged at
the facility and she is not in any of the categories
of Medical Staff established by the Medical Staff
Bylaws. 

In the next sentence, the report indicates that this uncredentialed ENT doctor was the one actually performing the nasal procedure in the presence of the medical director (Joan Rivers' gastroenterologist) an anesthesiologist and a technician.

However, on 8/28/14, the ENT surgeon who is not
privileged at the facility performed
Nasolaryngoscopy on Patient #1 in the presence
of the facility's Medical Director - Staff #1, an
Anesthesiologist - Staff #2, and an Endoscopy
Technician - Staff #5.

So here's how this went down, according to the staff member who is being interviewed by the federal investigator...

At interview with Endoscopy Technician, Staff #5
on 9/3/14 at 2:05 PM, she stated she was
informed prior to the start of the procedure that
Patient #1 will be coming in with her personal
doctor. She stated the ENT surgeon walked into
the procedure room escorted by Staff #1. Staff #5
stated the ENT surgeon was gowned and was
holding a suitcase. Staff #5 reported that Staff #1
had requested for an extra table so the ENT
surgeon can set up her suitcase. Staff #5 stated
that after the "Time Out" was announced for the
EGD and sedation was administered by Staff #2,
the ENT surgeon announced, "I will go first". The
ENT surgeon performed a laryngoscopy before 
the EGD was done. She stated that after the EGD
was completed on 9/28/14 at 9:28 AM, by Staff
#1, the ENT surgeon went in again with a
laryngoscope and was there for a minute or two.
Staff #5 stated that Staff #1 and Staff #2 did not
object to the ENT surgeon performing the
laryngoscopy.

Here's another violation of protocol...

The review of the medical record shows that not
all members of the procedure team were
identified in the Procedure Note and the role of
each team member was not clearly understood
by all team members. The team, prior to the
procedure, failed to verify procedures to be
performed and the indication for each procedure.
Not all parties involved in the patient's procedure
signed off on the procedure record and record
time in accordance with the policy.

Does that violation mean that the doctors were careless and violated the basic standards of medical care that resulted in Joan's injuries and untimely death? That's not what this section of this report means. In fact, you will notice that nowhere in the report do the federal investigators connect the dots and explain why and how Joan Rivers suffered the injuries she did.

However, if you read between the lines, you can reach your own conclusions.

Did you know that in a medical malpractice case in New York, we must only show that we are more likely right than wrong that what we are claiming is true?

Legally, that's known as the preponderance of evidence. Put another way, in order to be successful at trial, a jury must determine that we are only more likely right than wrong that the doctors and staff violated the basic standards of medical care and that those violations were a cause of Joan's injuries and her untimely death.

The jurors do NOT have to sit there for days and weeks on end trying to decide with 100% certainty whether the doctors actions caused and contributed to her respiratory arrest, cardiac arrest, massive brain damage and her death.

In this section of the federal report, we see a foreshadowing of something ominous...

At interview with Endoscopy Technician, Staff #5
on 9/3/14 at 2:05 PM, she stated the ENT
surgeon performed a Laryngoscopy for Patient #1
that was aborted because the ENT surgeon
stated she could not see very well what she was
trying to view. She stated that Staff #1 proceeded
with the EGD and when it was completed at 9:28
AM, the ENT surgeon went in again with a
laryngoscope and was there for a minute or two.
She stated the laryngoscope was withdrawn at
9:30 AM.

Here's another critical observation that is not reflecting kindly upon the doctors and staff at the endoscopy center...

The review of the Procedure Notes and
Cardiac Resuscitation Records for Patient #1
revealed the physicians in charge of the care of
the patient failed to identify deteriorating vital
signs and provide timely intervention during the
procedure on 8/28/14.

Here is a detailed sequence of events, looking at it from Joan's vital signs of what was happening...

The Cardiac Arrest Record indicated that
resuscitation of the patient was initiated two
minutes later at 9:28 AM.
However, at interview with Staff #5, on 9/3/14 at
2:15 AM, she stated that following the EGD scope
withdrawal at 9:28 AM, the ENT doctor proceeded
to do another Nasolaryngoscopy. The Endoscopy
Technician reported, "ENT doctor was in there for
a minute or two before the removal of the
laryngoscope at 9:30 AM. Vital signs recorded at
9:30:04 notes a blood pressure of 85/49, no pulse
recorded, and oxygen saturation was at 92%.

To make matters worse for the endoscopy center, there were conflicting accounts of when Joan was actually resucitated...

There was conflicting information in the medical
record regarding the time resuscitation was
initiated and the overall management of the
patient during the code (situations requiring
cardiopulmonary resuscitation).

You should know that in an emergency situation, the doctors and staff are not busy writing and records the events as they're happening. Instead, they are (hopefully) attending to the patient. It's only after the crisis has ended do they begin to document the details of the emergency.

As a result, there are often subtle inconsistencies between the timing of the events. Sometimes, there are glaring inconsistencies between team members. This creates often dramatic testimony between the medical caregivers that contradict eachother.

Here's a perfect example of that conflicting time period...

There were two code records in the patient's
medical record. One of the record titled Cardiac
Arrest Record indicated the patient went into
cardiac arrested at 9:28 AM and cardiopulmonary
resuscitation was initiated at 9:30 AM. This record
notes that the first set of medications,
Epinephrine 1 milligram (mg) and Atropine 1 mg
were administered at 9:38 AM.

Here's the problem I have with what happened in these fateful minutes...

If Joan went into cardiac arrest at 9:28 a.m. and an anesthesiologist is in the room, why did it take ten minutes to administer basic crash cart emergency life-saving medications? That makes no sense whatsoever. One reason is that the crash cart was nowhere to be found. Either that or it was in an area far away from where this procedure was happening.

Maybe the crash cart (a cart designed to carry life-saving medications) was locked and nobody had the key. 

Regardless of the actual reason, the question is why these medications were not administered quickly and immediately.

We would have a field day questioning the anesthesiologist during pre-trial testimony to get to the heart of why these critical life-saving medications were not administered immediately.

Here's a little sample of the questions that I'd ask the anesthesiologist...

"Doctor, would you agree that in an ambulatory surgery facility you must have a crash cart available at all times?

Would you agree that the crash cart must be fully stocked?

Would you agree that a crash cart must be readily available?

Would you agree that the following medications must be contained within a crash cart: Epinephrine, atropine and succinycholine?

Tell me what epinephrine is and when it's used.

Tell me what atropine is and when it's used.

Tell me what succinycholine is and when you'd use it.

Would you agree that if a crash cart was not readily available at the ambulatory surgery facility that would be a departure from good care?

Would you agree that if a crash cart was not full stocked, that would be a departure from good care?

Would you agree that if a crash cart did not containe (1) epinephrine (2) atropine and (3) succinylcholine that would be a departure from good care?

In addition to those departures, they would also be violations from the protocol established by the endoscopy center.

In addition to those departures, they would also be violations from good, basic anesthesia practice."

and on, and on...

Here's another critical finding during the code, when Joan went into respiratory and cardiac arrest...

The second code record titled Endoscopy Code
Blue Record noted the patient had a pulse and
was in ventricular tachycardia (V-tach or VT - a
type of rapid heart beat, that starts in the bottom
chambers of the heart, called the ventricles, the
main pumping chambers of the heart) at 9:28 AM.
It was documented that assisted ventilation and
chest compression were initiated at 9:28 AM.
However, there was no indication that the
ventricular tachycardia with presence of pulse
was immediately treated in accordance with
Advanced Cardiac Life Support.

Here's just one inconsistency in the timing of when life-saving medication was given...

Instead, the code
record notes that Epinephrine 1 mg and Atropine
1 mg were administered to the patient at 9:28
AM.

Here's another two violations observed by federal investigators...

A physician must examine the patient immediately
before surgery to evaluate the risk of anesthesia
and of the procedure to be performed.
This STANDARD is not met as evidenced by:
Based on interview, the review of medical record
and other documents, it was determined that staff
failed to follow standards of practice for the use of
moderate and deep sedation.
...it was determined the
facility's Medical Staff failed to comply with
Medical Staff Bylaws to assure patient's safety.
Specifically, Medical Staff members failed to
assure that only physicians who have been
credentialed and appointed as members of the
Medical Staff at the facility, could provide and
supervise the care of patients.

As far as a requirement to keep accurate and thorough records...take a look...

Every record must be accurate,
legible, and promptly completed.
...it was determined the facility failed to
ensure that medical records are accurate and
complete.

There is a requirement that the patient consent in writing to every procedure being performed. According to the investigation, here's what they said...

The medical record lacked an informed
consent for each procedure performed. There
was no consent obtained from Patient #1 for a
Nasolaryngoscopy performed on 8/28/14.

That of course refers to the procedure done by Joan's private ear nose and throat doctor.

With regard to the anesthetic used during the endoscopy, the investigation also faults the facility as follows:

The dose of Propofol (a short acting sedative
hypnotic used in short procedures and minor
surgeries) administered to the patient for sedation
was inconsistently documented in the medical
record.
The Medication Administration Record notes a
total dose of 300 milligram of Propofol was given
to Patient #1 during the procedures she
underwent at the facility. Propofol 100 milligram
at 9:21.45 AM, 100 milligram at 9:21.46 AM, AM,
50 milligram at 9:21.48 AM and 50 milligram at
9:21.50.
However, an addendum by Staff #2 Anesthesiologist, on 8/28/14 at 2:36 PM, notes
there is a mistake in the Propofol log; the correct
dose given was 120 milligram and not the 300
milligram documented in the Medication
Administration Record.
At interview with Staff #2 on 9/2/14 at 3:00 PM,
she stated she was advised by her legal counsel
to defer interviews, but she emphasized to the
survey team that she gave Propofol 120
milligram. She stated the 300 milligram of
Propofol recorded in the Medication
Administration Record was a mistake. She
explained she double clicked on Propofol 100
milligram and that is the reason for the double
dose recorded in the Medication Administration
Record. She added that after the administration
of Propofol 100 milligram , she gave an additional
dose of 20 milligram and not the two doses of
Propofol 50 milligram recorded in the Medication
Administration Record on 8/28/14 at 9:21.48 AM
and 9:21.50 AM.

These inconsistencies create an abundance of issues that will be addressed during any lawsuit that's brought by Melissa Rivers during the depositions of the endoscopy center staff and anesthesiologist.

Another series of inconsistencies to be addressed is when certain medications were given during the code as again noted here...

One record titled Cardiac Arrest Record indicated
the patient went into cardiac arrested on 8/28/14
at 9:28 AM and cardiopulmonary resuscitation
was initiated at 9:30 AM. This record notes that
the first set of medications, Epinephrine 1
milligram and Atropine 1 milligram were
administered at 9:38 AM.
However, the second code record titled
Endoscopy Code Blue Record noted the patient
had a pulse and was in ventricular tachycardia at
9:28 AM. It was documented that assisted
ventilation and chest compression were initiated
at 9:28 AM. The code record notes that
Epinephrine 1 milligram and Atropine 1 milligram
were administered to the patient at 9:28 AM. In
this record the medications are indicated as being
administered 10 minutes earlier than what is
indicated in the initial Cardiac Arrest Record.

To forcefully bring home the point, the investigators point out a glaring lack of informed consent for the laryngoscopy that was done by the ENT...

The patient has the right to the following:]
(iii) Be fully informed about a treatment or
procedure and the expected outcome before it is
performed.
This STANDARD is not met as evidenced by:
Based on interviews, the review of medical
record and other documents, it was determined
the facility failed to obtain an informed consent for
procedure to be performed. Specifically, an
informed consent was not documented for
laryngoscopies performed on patient #1 on
8/28/14.

To add fuel to the fire, we have indications that a staff member took a photo using a cell phone while Joan Rivers was sedated which clearly violated the endoscopy facility's cell phone policy. Take a look...

"Staff #1 used a cell phone
to take pictures of Patient #1 and the ENT
surgeon during the second laryngoscopy". Staff
#5 reported that "Staff #1 said maybe Patient #1
would like to see this in the recovery area".

To learn more about whether Joan Rivers' autopsy report was really conclusive since no real autopsy was done, I invite you to watch the video below...


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer