JURY RULES IN FAVOR OF UCSD MEDICAL CENTER
Patient brought a lawsuit against hospital saying he awakened during surgery
After five weeks of testimony it took a San Diego Superior Court jury just a day to clear UCSD Medical Center and a former anesthesiologist of accusations by a patient who said he awakened during surgery.
The lawsuit from Randy Dalo and his wife Karen Dalo contended he got an insufficient amount of anesthesia when he underwent delicate surgery on his neck on Jan. 27, 2017, due to the anesthesiologist’s long-running addiction to opioids. It targeted Dr. Bradley Hay and the UC system, as well as Dr. Gerard Manecke Jr., the chief of anesthesia at the time, and nurse Tammy Nodler.
Dalo said that soon after the surgery he began having terrifying
dreams in which he awakened, surrounded by several hazy figures looking down on him. He would try to scream, but could not. The dream was coupled with strong
pain that Dalo said he suffered after waking up.
The couple would later find out that Hay had injected himself with powerful opioids before and after the surgery. He was found on the f loor of a hospital bathroom an hour after the surgery, unconscious, speckled with his own vomit and with several syringes nearby. He had overdosed on sufentanil, a powerful opioid he had stolen from the hospital.
The couple claimed in the suit that UCSD covered up that fact from them for months, falsified records of the procedure, and had allowed Hay to continue to work though he had a decade earlier been treated for his addiction at an outpatient clinic.
UCSD denied any cover-up and said Hay had deceived them about his relapse and stealing drugs — something the doctor admitted he did hundreds of times in deposition and on the stand. Lawyers contended that Dalo’s dream was not from insufficient anesthesia, but was likely a remembrance of when he woke up from a deep anesthetic in the recovery room.
They used a variety of medical
records that monitored Dalo’s condition during and after the surgery which showed he was deeply asleep. A series of experts also testified at trial that the records showed Dalo had not awakened.
Jurors accepted that defense and rejected Dalo’s claims of battery, fraud by concealment, and breach of the duty of patient care owed to Dalo. Eugene Iredale, the lawyer for the couple, said the case was not over.
He said he planned to file a motion for a new trial, and if unsuccessful, he would appeal. He also said he will press on with a lawsuit seeking class-action status on behalf of an estimated 800 patients who were treated by Hay in the two years previous to the Dalo surgery.
A key issue in the trial was whether Dalo had experienced “intraoperative awareness” — the medical term for when a patient is not fully unconscious — that fueled his recurring nightmares. UCSD and Hay, who testified during the trial, insisted they did not short Dalo on how much anesthesia he required.
“There is no way physiologically possible that Mr. Dalo was awake,” Michael Weiss, the lawyer for UCSD, said emphatically in closing argument Wednesday.
Weiss pointed to evidence like a neuromonitor that tracked Dalo’s brain activity during the surgery and other gauges as objective proof that he was unconscious. That was enough to convince the jury.
“They didn’t dispute he had the dreams,” Iredale said after the verdict, “but they said there was insufficient proof those dreams reflected intraoperative awareness.”
Iredale argued that even if Dalo had not awakened the hospital was at fault in other ways. He contended that by not telling the Dalos of Hay’s addiction problems in his career that the hospital had not gotten legally adequate consent, and had violated their duty to care for patients. That, too, had caused the couple “significant emotional distress above and beyond the intraoperative awareness,” he said after the verdict.
During closing arguments he said jurors should award each of the Dalos between $5 million and $15 million.
Hay voluntarily surrendered his medical license in 2017 and later pleaded guilty to a felony charge of acquiring controlled substances by fraud and was put on probation for a year in 2018. His attorney did not respond to a message seeking comment on the verdict Thursday.
During the trial Hay was characterized by defense experts as a “high-functioning addict,” meaning he could use drugs daily — he said in a deposition he injected himself up to eight times a day — and still do his job well.
“I could compartmentalize and do safe anesthesia, even though the rest of my life was a mess,” he testified under questioning by Iredale during the trial. In 2008 Manecke had confronted Hay, correctly suspecting he was using drugs then. He went to rehab and returned to UCSD under a series of one-year contracts and being monitored by a hospital committee, gradually earning more freedom in his work.
He remained sober for years until 2016, when he started using again and stealing drugs. At one point during his testimony, as Iredale recounted how he stole drugs and how often he used them, Hay became distraught. “Just because I’m a degenerate doesn’t mean I can’t do a safe anesthetic,” he replied, near tears, to Iredale.
UCSD issued a statement Thursday thanking the jurors for their service, but not commenting on the trial or its outcome.