Fixing the ImpossiBle
24/7 (202) 973-1300   

“They Cut the Wrong Stuff”

by Doug Wojcieszak
This week’s guest columnist is Doug Wojcieszak, MA, MS, Founder and President of Sorry Works, a 501c3 patient safety organization that teaches disclosure, transparency, and apology to healthcare, insurance and legal professionals.
To submit a guest column, please email it to our Marketing Coordinator, Nicole Mailhoit at [email protected]

Today I want you to meet Tyson Horton and his mom, Lori. They live in rural Oregon where Tyson is an 8th grader and Lori works at a local hospital. At age 13, Tyson enjoys fishing, riding his quad and horses, being outside, operating remote control cars, and, of course, video games. Sounds like teenagers you know or what your kids were like when they were teenagers, right? My 16-year-old son would enjoy spending time with Tyson. Yet, each day, Tyson faces challenges not experienced by most teenagers or adults. Tyson will endure a lifetime risk of organ rejection and other medical issues because he needed a partial liver transplant from his mom when he was an infant. Tyson’s liver was killed by medical errors, and then his mom and family were brought to the edge of bankruptcy by the hospital’s attorneys running them through the legal system for seven years.

You will read Tyson’s story and get to know him and his struggles. Tyson and his mom have an important message for attorneys, the people who hire and manage lawyers, and insurance companies.

In July 2009, Tyson, at six months of age, suffered from unexplained constipation which led to a diagnosis of an inoperable tumor in his liver. The diagnosis was made at a small, local hospital near Tyson’s home. Tyson needed three months of chemotherapy to shrink the tumor to have a chance for a successful operation. His care was beyond the scope of the family’s local hospital, so Tyson was referred to Oregon Health & Science University Medical Center, or OHSU, a teaching hospital.

By early September (2009), the tumor had been shrunken to the point that surgery could be attempted. The surgical plan was to remove only the tumor and leave the healthy portion of Tyson’s liver alone. Then, hopefully, Tyson would grow up like any other kid, without the lasting effects of the cancer or the operation, with his healthy immune system, his spleen, and no need for constant monitoring or medications. Sadly, the surgery went terribly wrong. Here is a quote from Lori’s CaringBridge Journal dated September 18, 2009 which graphically captures how medical errors literally come screaming out of left field for patients and families:

“He went in to surgery at 11:00 this morning. At 12:30 PM we received an update from the nurse over the phone that he was stable. At 1:30 PM we got another update over the phone, from the same nurse that said they were almost finished removing the tumor and they expected to be finished by 3:00 PM. Then at 3:00, instead of a phone call from the nurse, the surgeon came out to talk to us. He took us to a private room where we expected him to tell us that Tyson was in recovery and the procedure went smoothly. But instead, he looked us straight in the eye and gave us the bad news. Somehow, and we don’t know exactly what the sequence of events were at this point, somehow they severed the hepatic vein and the bile duct connecting the left lobe of his liver. They cut the wrong stuff.”

They cut the wrong stuff. Somehow, inexplicably, a surgeon in training (a Fellow) was able or allowed to get on the wrong side of Tyson’s liver and literally cut the wrong stuff. A “never event” happened to a nine-month-old baby.

The OHSU surgical team labored to control the bleeding that emptied Tyson of his blood volume more than ten times. In fact, Tyson had been bleeding uncontrollably for 45 minutes before the error was discovered. An adult liver transplant specialist was brought in to save Tyson’s life. Nine-month-old Tyson endured two more trips back to the surgical suite in just 24 hours, but the train wreck could not be stopped. Tyson’s liver and kidneys began to fail, and on the third day he and Lori were medivacked to Stanford Hospital in Palo Alto, California while Lori’s husband, Steve, drove the eight plus hours to the hospital.

Stanford physicians informed the family that Tyson’s liver was dead and poisoning his body, and he would need a liver transplant in order to survive. Tyson was put at the top of the national donor list, but no donors were available. The Stanford medical team worked overtime to keep Tyson alive while Lori was evaluated for a possible donation. Lori was cleared to donate and after fighting through insurance and bureaucratic red tape, she was on the operating table donating the left lobe of her liver. Lori’s donation saved Tyson’s life, but the medical roller coaster was just beginning for the family.

For the next two years, Tyson experienced multiple complications and life-threatening emergencies, and even coded in a hospital elevator. Numerous times Lori and Steve were informed their son would not survive the night. Tyson fought through line infections, staph infections, pneumonia, uncontrollable blood pressure spikes, his spleen and major blood vessels dying, and constant concern about his liver and kidney functions. The family had to rent an apartment in Palo Alto due to his extended stays at Stanford Hospital. Lori also suffered her own complications from the donation surgery – a flipped stomach – which made her terribly sick and, after a month of being in the hospital while doctors worked to diagnose what was wrong, required an additional operation. All told, the family initially racked up over $3 million in medical bills with Tyson’s care and an additional $500K with Lori’s care, and would eventually incur $5 million in medical debt and related expenses. Tyson’s life did not reach some level of normality until the end of 2011. However, Tyson’s life is anything but normal, even eleven years after the medical errors that nearly took his life. His brain was impacted by the countless medical crises of his first two years of life, and school is a terrific struggle. Participating in sports is a challenge, and Tyson is constantly monitored for organ rejection and other potential problems.

Surgeon Discloses Errors; Lawyers Grab Defeat from Jaws of Victory

Four hours after the original operation began, the surgeon came out to meet with them. Lori was expecting to hear everything went great, Tyson is in recovery, etc. Instead, the surgeon took Tyson’s parents to a separate room, sat down, and explained that the surgical team – which included a Fellow/surgical resident doing the cutting – had gotten on the wrong side of the liver and had literally cut the wrong veins. Lori explained that the surgeon was extremely humble, showed remorse, didn’t withhold information, didn’t shift blame, expressed that he didn’t know how the error happened, and disclosed that Tyson bled uncontrollably on the table for 45 minutes before they realized something was wrong. The surgeon offered to answer additional questions on the spot, but Lori said there would be time for that later – he just needed to get back to the operating room to save Tyson’s life. The surgeon still had Lori’s trust.

Sometime over the next day or so, Lori and her husband met with a room full of people from OHSU, including the surgeon, the Fellow (surgical resident), OHSU’s risk manager, and legal counsel. The surgeon was again humble and open, even hand drawing diagrams to show where the wrong cuts were made. The Fellow remained silent throughout the meeting. Moreover, the Fellow never met independently with Lori or her husband to express remorse or accept responsibility for the errors.

After Tyson was medivacked to Stanford, the OHSU risk manager flew down from Portland to Palo Alto, CA to meet with Lori and her husband, and delivered terrible news: The hospital’s liability limits per Oregon law were capped at $3M – including economic damages – for a government organization such as OHSU, and the family was on their own beyond $3M. Never mind that OHSU had settled several cases a few years prior to Tyson’s injuries in excess of the cap. This was devastating information for a family doing everything possible to keep their son alive. In fact, the risk manager told the family they would need to hire an attorney to challenge the Oregon cap. Lori and her husband were shocked.

The family retained counsel. Their attorney waited until September 2011 – just before the statutes expired – to file the lawsuit. The Horton family and their attorney honestly believed OHSU would try to make the situation right (again, OHSU had settled cases for over $3M, including $9M plus for a brain-damaged baby), but there was nothing but silence, aside from discovery, for two years.

According to Lori, OHSU did not admit fault to the court for the medical errors that nearly killed Tyson until their September 2013 trial – four years after the error-ridden operation. Lori said the trial was basically a battle of experts arguing – and guessing – the past, present, and future damages done to Tyson and their family. Ironically, throughout the trial the surgical Fellow (who cut the wrong veins) and Lori were forced to sit next to each other, but the Fellow spoke nothing of the errors and did not apologize to Lori or the family. Instead, Lori said they made very awkward small talk.

The Horton family attorney asked the jury for $30M, while OHSU’s attorney told the jury $8M was fair value for the case. The jury awarded $12M to the Horton family. Instead of negotiating with the family, OHSU immediately appealed the ruling to the Oregon Supreme Court to enforce the statutory cap of $3M. For the third time in this column, OHSU had settled other cases above the cap prior to Tyson’s case. In 2016, the Supreme Court, in a split decision, reduced the award to $3M, citing the cap that state facilities in Oregon can pay no more than $3M for medical errors. OHSU claimed a legal victory in the press, while Tyson’s family faced collections and bankruptcy Moreover, Lori and her family were exposed to public jeers in social media, chastising them for being greedy for wanting more than $3M. Never mind that Tyson and Lori had racked up $5M in unpaid medical bills and faced a lifetime of expensive continuing care and an uncertain future for Tyson. Never mind that the family had experienced extreme pain and suffering, and more would likely come. The social media “experts” thought Lori was greedy and OHSU didn’t bother to defend the family. Lori shared with me that the trial and appeal process brought more pain and financial harm to their already damaged family.

Unbeknownst to Lori, after the Supreme Court’s ruling, OHSU and Stanford reached an agreement for OHSU to pay the family’s outstanding medical bills for pennies on the dollar. So, in the end, the Horton family was rescued from bankruptcy, but they continue to worry about Tyson’s health every day and are forced to pay out of pocket for partially covered, expensive medical care to monitor Tyson’s health, having never received a nickel for their pain and suffering, past, present, or future.

What a tragedy. The surgeon who met with the family showed morality and humility, but the rest of the OHSU leadership team was mostly missing in action. How could they do this to the family of a little boy they almost killed? Why didn’t someone – anyone – step up and make this situation right by the family? Why did OHSU wait until the end – after dragging the family through an exhaustive trial and appeals process – to figure out a way to pay the family’s past bills? If, instead, the organization had been proactive, could money and resources have been saved that not only would have paid the past bills, but also covered future bills and provided some monetary relief for pain and suffering? Moreover, how could hospital administrators allow their attorneys to further injure the reputation of their organization? Sure, they “won” a legal victory and saved the hospital some money, but how much more money was lost in bad publicity? How many patients looked elsewhere for care? And how many physicians referred patients elsewhere because of Tyson’s case?

A Direct Appeal from Tyson; Mom Open to Reconnecting with Surgeon

Lori asked Tyson to share what he wants people to learn from his story. Here is Tyson in his own words:

  1. “Take responsibility for your screw-up
  2. Do your best to fix the error
  3. If you can’t fix it, have a more experienced doctor come in
  4. Pay the bills

I don’t know what life is supposed to be like, because it happened when I was so young. I never knew what not having a scar was like. I’ve never known what life could be like without the transplant so it feels normal. Most of my friends don’t know what I’ve been through or that I even had surgery. I think that’s good because I want to be normal, but I’m not really.

I played basketball in the 7th grade but it was hard to keep up with my friends on the court because I got tired so fast. I’ve always wanted to go into the Air Force but I can’t because of the transplant. I have to have blood draws every 12 weeks because of the transplant and they can be a little bit of a hassle. And every year I have to go to Portland for a check-up with my Stanford transplant doctors. I miss out on stuff while I’m up there.”

For her part, Lori is open to reconnecting with the senior surgeon who initially disclosed the medical errors. She said the doctor was humble, contrite, and seemed to be trying to do the right thing, but, unfortunately, the attorneys and others got in the way. Lori has not heard from the surgeon for years but wonders if he would like to see Tyson now, reconnect, and heal. Lori’s appeal was broadcast this summer (2022) through my non-profit, Sorry Works, to no avail. Perhaps this larger and diverse audience through LEVICK may lead to a breakthrough

Conversely, Lori believes she would have a tough time meeting or forgiving the surgical resident (or fellow) who did the actual cutting on Tyson and said nothing, even though they were seated together at the trial. Lori believes the resident left the OHSU program after the trial.

Lori is thankful for every day with Tyson and calls his life a “blessing,” though she continually worries his health could turn for the worse any day.

Additional Thoughts…

Tyson is like any other teenager, sans the medical errors and tragedy that followed. How would you feel if Tyson was your son, nephew, or grandson? How would you feel living Lori’s history with legal professionals, and now worrying daily that Tyson’s health may fail? Tyson should always be top of the mind for attorneys and claims professionals tasked with unwinding tragedies. Tyson and Lori are not numbers on a spreadsheet…they are just like the people you love. Administrators who manage lawyers and claims professionals should remember Tyson and Lori when hiring and firing people.

There is a movement in medicine to disclose medical errors, apologize, and offer upfront compensation to patients and families along with addressing the emotional needs of all stakeholders. This movement has produced some remarkable results reducing litigation while providing more meaningful closure for all stakeholders (including clinical staff) while making medicine safer. More importantly, there have been amazing stories of patients, families, doctors, and nurses reconciling after medical errors, healing, and working together to make medicine safer.

Medical malpractice is one of the most emotionally charged areas of litigation. If “sorry” and proactive behavior can resolve these cases peacefully and fairly, imagine what it can do for your disputes. Note: This is not arbitration or mediation…it’s quicker, smarter, and more compassionate. Yet, implementing a disclosure and apology program is not easy, as Tyson’s case demonstrated. The senior surgeon quickly disclosed the errors to Tyson’s parents and did so a second time with hospital administrators present (this behavior would not have happened 22 years ago when I lost my oldest brother to medical errors). Nonetheless, the hospital did not have an ethical plan in place to fairly address the needs of Tyson’s family (even though they had settled similarly situated cases), causing further harm to Tyson and his family and also harming the hospital. Having a plan and program in place along with hiring ethical attorneys and claims professionals (and firing those who fight the program) is absolutely necessary.

Tyson Horton has a powerful story. Medicine is making a powerful story with the disclosure and apology movement. We invite you to learn more.

More Posts