Brain Injury Lawsuit Filed Against Several Doctors for Medical Malpractice

Case Summary:

This is a review of a brain injury lawsuit filed by the estate of a woman who suffered brain damage while under the care of several doctors. They were operating on her after she was critically injured in a vehicular collision.

The plaintiff contended the doctors failed to provide proper intubation for the woman during surgery. That improper intubation resulted in decreased oxygen to the woman which in turn resulted in “anoxia” and related brain damage.

The woman’s family thereafter attempted to negotiate a medical malpractice settlement with the doctors and the hospital. All attempts were futile. As a result the family filed a lawsuit against the hospital and the doctors collectively.

Statement of Facts…

On January 10th, 2011, Connie Aspen, a 42-year-old mother of four was admitted into Brookville Memorial Hospital. Approximately 45 minutes before her admittance, Aspen was involved in an automobile collision.

Prior to the collision, it had been raining for several hours. Aspen was on the highway on her way home from work. She lost control of her car and collided with the guardrail. The impact of the collision overturned Aspen’s car. It came to rest upside down and Aspen had to be extricated from the car with the fire department’s “Jaws of Life”.

Aspen was rushed to Brookville’s Emergency Room in critical condition with contusions and lacerations over 60% of her body. Her ribcage was shattered and both legs were broken. Her other injuries included damage to her spleen, liver, and pancreas. She also suffered a ruptured abdominal aorta which resulted in an aneurism.

In the emergency room Aspen was stabilized an intubated via her trachea. The doctors on call worked feverishly to repair her abdominal aorta. During surgery the doctors found the aneurysm. Their concern was twofold. First, they needed to repair the ruptured aorta, and second, they needed to repair the aneurysm which developed as a result of the severe impact of the collision.

During surgery the intubation tube became slightly dislodged and Aspen became extubated. At the time it went unnoticed. The dislodging of the intubation tube inhibited oxygen from entering through Aspen’s trachea. As a result Aspen went for several minutes without receiving sufficient oxygen. When the dislodging of the intubation tube was finally realized, brain damage had already occurred.

After she learned her sister had suffered brain damage, Connie Aspen’s sister Moira Ace attempted to reach a settlement with the hospital. When that failed, she retained counsel and filed a brain injury lawsuit.

The Lawsuit and Cross Action…

In her brain injury lawsuit, Ace contended Brookville breached the standard of care which was expected of a medical care provider under similar circumstances. This breach, Ace contended, constituted negligence.

Ace further contended Brookville had a duty to provide proper medical treatment to Aspen and that Brookville breached that duty. The combination of Brookville’s breach of the standard of care, its breach of duty to provide appropriate care, and resulting negligence constituted medical malpractice.

Ace’s Original Petition contended Brookville be found by the Court to be solely responsible for Aspen’s brain damage. As a result, Ace demanded compensation for Aspen’s actual medical bills, the out-of-pocket expenses for the present and future prescribed and over the counter medications, as well as the continual medical care Aspen will require.

Ace also demanded compensation for Aspen’s loss of income and her loss of “consortium,” (meaning the loss of intimacy with Aspen’s children and family members). Finally, Ace demanded compensation for Aspen’s present and future pain and suffering.

Brookville’s defense included a cross petition, or “cross action” against the Orion Corporation. Orion manufactured the intubation tube used during Aspen’s surgery.

Brookville contended the hospital and its doctors exercised the highest standard of care for Aspen. Brookville further contended it had not breached its duty of care for Aspen; that the failure of the intubation tube to stay properly lodged in Aspen’s trachea was a result of a faulty design of the intubation tube. That faulty design, Brookville contended, was an independent action not under Brookville’s control.

Brookville asked the court to dismiss, or “non-suit” them from the brain injury lawsuit and to allow Ace to proceed solely against Orion. Brookville’s attorneys presented as witnesses seven registered nurses and two physicians who testified that on previous occasions during surgeries the intubation tube manufactured by Orion dislodged.

Brookville’s attorneys also called to testify Brookville’s Chief of Surgery. The Chief of Surgery testified she met several times with representatives of Orion. On those occasions, she voiced her concern about the experiences several physicians had with Orion’s intubation tube when it became dislodged.

The Chief of Surgery testified Orion modified the intubation tube and presented the new and modified version to her. She testified the new and modified intubation tube had been used successfully and without incident for the last two years.

She further testified if there had been any dislodging events with the intubation tube, she would have immediately reported that event to the hospital administration. She testified the dislodging of the intubation tube during Aspen’s surgery occurred when the tube failed and its supporting mechanism also failed.

The Chief of Surgery concluded her testimony by stating immediately after Aspen’s surgery, when the dislodging of the intubation tube was recognized, she reported the event to the Brookville’s Administration.

The Administration, she said, immediately contacted Orion and cancelled their contract for the supply of further intubation tubes. She also said the Administration immediately discontinued the use of the Orion intubation tubes they had on hand and began using a previous model manufactured by a different company.


After reviewing the evidence and hearing the arguments of counsel for Ace and for Brookville in this brain injury lawsuit, the Court ruled as follows:

“For the Court to conclude the defendant Brookville Memorial Hospital committed medical malpractice the plaintiff Moira Ace would have to prove Brookville Memorial Hospital’s actions during surgery constituted a deviation from accepted medical practice, and that the departure from accepted medical practice was the proximate cause of Connie Aspen’s injuries.

While the court concludes the breakdown of the intubation tube’s supporting mechanism was the main reason Ms. Aspen suffered a lack of sufficient oxygen and resultant brain damage, our decision cannot exempt or excuse the defendant Brookville Memorial Hospital from its duty to provide a standard of care which is to be expected of a medical care provider to a patient under similar circumstances.

We find the defendant Brookville Memorial Hospital had a duty to provide Ms. Aspen with the care and treatment she would have expected during surgery. Although tragic, we cannot allow the defendant to stand behind the Orion Corporation using them as a shield against liability.

If the Court were to permit hospitals to be shielded from liability each time a device malfunctioned and such malfunction resulted in injury to a patient, the Court would set a dangerous precedent. The sheer multiplication of Cross Claims and individually separate lawsuits would confound the issues of liability.

Therefore we must hold the defendant Brookville Memorial Hospital liable in this brain injury lawsuit for the injuries to Ms. Aspen.

We find for the plaintiff Moira Ace and against the Defendant Brookville Memorial Hospital. The defendant’s request to be dismissed from the present action is denied.”

Important Points…


  • Medical Malpractice cases are normally filed when a patient has been injured and the injured party believes their injury was a direct and proximate result of the hospital or its employees’ negligence.

    Proving medical malpractice must include evidence the actions or inaction of the medical care provider deviated from that standard of care the Court believes should apply to all medical providers under similar circumstances.

    That proof can be objective, such as a physician prescribing the wrong medication to a patient and that mistake resulted in harm to the patient. Or the proof can be subjective, such as when a physician’s decision to order a certain medication resulted in harm to the patient.

    In the latter example a physician might have made a decision she believed to be correct, and that decision was one based on acceptable medical protocol. Doing so then would then not be a deviation from the accepted medical practice.


  • Often in lawsuits a party is injured as a result of an intervening force. That intervening force is often one which the defendant had little or no control over.

    The question for the courts then becomes whether the intervention of a force which caused injury to the plaintiff can be ascribed to the defendant. That decision is normally reserved for the courts, and is dependent upon supporting evidence. This brain injury lawsuit was an excellent example.

*This case example is for educational purposes only. It is based on actual events although names have been changed to protect those involved. Any resemblance to real persons or entities is purely coincidental.

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