Why Court Kicks out a Patient in Vegitative State ①

강현석

2022년 08월 25일 20시 00분

Procedures that seem fair sometimes have unjust outcomes.

In May 2022, when the COVID-19 pandemic was subsiding, several men in suits came into a room in the 96th ward of the new building of Asan Medical Center.

Jang Gyeong-bok, a patient in a vegetative state, was alone staring at the ceiling with blurred eyes. Her wife was away. The men in suits placed a piece of paper at his bedside and left. They were court officials, who came without a prior notice.

▲Notice of forced eviction from the hospital is attached to the bedside of patient Jang in a vegetative state.

“There was a request for forced eviction from the hospital ward, so you need to voluntarily move out by June 10, 2022. If not, you will be forced out without notice and the cost for removal will be charged,” the notice stated.

The hospital has been persistently demanding Jang leave.

The court executors visited him again and urged Jang’s wife, “We placed the notice. Why haven’t you taken any action?” The deadline has already passed.

Time is closing in on Jang Gyeong-bok. He is slowly letting go of the world in the hospital bed without knowing the fight that his family is having with the hospital.

A cruel Saturday in 2015

Since that day seven years ago, everything has turned into turmoil. On Saturday, November 28, 2015, there were only a few customers at a small restaurant in Cheongju, North Chungcheong province.

“I recall that the lunch business was really slow on that Saturday.” Won-jae, the son of restaurant owner Jang Gyeong-bok, said.

He was taking care of the restaurant for his parents. His father was hospitalized at Asan Medical Center in Seoul as his herniated disc in the neck got worse and just had two surgeries. He called up his mom.

“My mother sounded serious over the phone. That’s when it happened, at lunchtime.” He kept asking “What’s wrong?” again and again. His mother couldn’t speak. Right then, he took a taxi and rushed to Seoul.

A week ago, Jang Gyeong-bok comfortably walked into Asan Medical Center with his wife. He enjoyed sports such as table tennis and had no issues with having a normal daily life. He even took a trip with his wife until the day before he came to the hospital. It was just that he fell on the hills of a stream and had severe neck pains.

Asan Medical Center diagnosed Jang to be suffering from cervical myelopathy and Ossification of the Posterior Longitudinal Ligament (OPLL). That was when he learned the complicated name of the diseases, for the first time. A local doctor in his hometown advised him to go to a bigger hospital saying, “Your bones are pressing on the nerves.”

▲Jang Gyeong-bok took a picture a few days before the medical accident.

Jang’s wife trusted Asan Medical Center and made the reservation, because she had fond memories of being treated there in the past and was satisfied with them.

“I had more affection for Asan Hospital than others,” she said.

The medical team at Asan Medical Center planned two cervical spine surgeries in the same week. After the first surgery, Jang took pictures of himself and sent them to his son and daughter to reassure them. In a wheelchair pushed by his wife, he captured the flowing Han River with his eyes.

At an intensive care unit at Asan hospital, everything was fine until 12:45 p.m. The second operation, which lasted for 8 hours the day before, was successful. After waking up from anesthesia, Jang was breathing with the help of a ventilator.

Soon, he was able to be moved to the general ward. He had clear consciousness and was able to breathe on his own. It was time to remove the breathing tube that was inserted into the trachea through his nose.

Jang’s doctor, an orthopedic resident, and a nurse came and started a preliminary examination.

“Honey, you are now going to the general ward,” Jang’s wife said, holding her husband’s hand and reassuring him.

Yet, things started to get weird. The nurse pulled out Jang’s phlegm and said quietly, “I think it’s too soon, it’s too early.”

“Doctor, can’t we do it later in the afternoon?” Jang’s wife asked, becoming anxious.

There was no answer. When Jang’s wife urged him to answer, the resident responded by tapping on the desk with a pen. “I am testing now.”

As the resident pulled the tube, Jang twisted his whole body.

“The doctor pulled the tracheal tube straight out in front of me. And then my husband popped into the air. His airway must have been blocked. He popped into the air.” Jang’s wife Go Jeong-soon screamed as her husband struggled. The nurse hurried to make calls, but it was no use.

A tragedy occurred on a weekend lunchtime, in the ward of Asan Medical Center, one of the largest tertiary general hospitals in Korea.

“It was lunchtime then, so there was no one else. I was shaking, jumping and shouting ‘Oh my God, What do I do?’ I screamed to the nurse to make calls and ask for help, and then they made announcements. But the clock was still ticking.”
Go Jeong-soon, Jang Gyeong-bok’s wife

Jang suddenly fell into shortness of breath. This was the beginning of a medical accident that later was judged as “airway obstruction due to airway edema or airway spasm.”

According to the records, three minutes after the accident at 12:45 p.m., the medical emergency team came running after hearing the announcement.

The orthopedic resident who removed the tracheal tube attempted an emergency procedure (cricothyroidotomy). A senior resident from the same department came and helped. Cricothyroidotomy is an emergency procedure of inserting a breathing tube by incision of the cricothyroid membrane between the thyroid cartilage and the cricoid cartilage in the neck when failing to secure the airway.

Studies show that only 1 percent of patients undergo this emergency procedure due to failed endotracheal intubation. It is reported that this procedure is rarely performed in emergency medical centers as well. The toughest part is to find the location of the cricothyroid membrane accurately and quickly. Success depends on this.

The residents made a judgment by the book but the emergency procedure was not successful.

Jang Gyeong-bok lost consciousness. His pupils dilated. Oxygen saturation dropped to 20 percent. Cardiac massage and CPR managed to catch the lost pulse. An otolaryngologist who showed up later made an incision in the trachea and inserted a tube to secure breathing. When all of this was over, about 17 minutes had passed since Jang had trouble breathing.

It was all over when Jang’s son arrived at the hospital, after taking a taxi for two hours.

▲Go Jeong-soon, Jang’s wife, is explaining what happened at the time of the medical accident to Newstapa reporters.

Falling into a vegetative state was the beginning of a long-term hospitalization

Normally, brain damage begins five minutes after oxygenation stops. They missed the golden hour.

In the earlier days of the accident, the medical staff reassured the family.

“At that time, the hospital said it was a mild symptom,” Jang’s son remembered. “I just trusted what they said and thought that after some time my dad would get up again and be okay.”

“Looking back on it, now I see those words were just to reassure us.”

Jang was diagnosed with hypoxic brain injury due to this accident and has not been able to regain consciousness.

He has never left the Asan Medical Center since then. Seven years have passed like that. He has become one of the long-term inpatients, which is a concern of tertiary general hospitals.

At the time of the medical accident, Jang was an ordinary ‘ajeossi' – a Korean word for middle-aged man – who just entered his 50s. Now he is stuck in-between a “persistent vegetative state and brain death.” He is breathing on his own, able to open and close his eyes, sleeps, and makes reflexive responses. However, he is unconscious.

Jang was the breadwinner of his family. But now he is with “permanent disability with a 100% loss of work capability.”

He requires care from three male caregivers 24 hours a day. He also needs continuous medication and rehabilitation treatment to prevent complications. The so-called “conservative treatment” is necessary for the rest of his life, but it is hard to expect his symptoms to improve.

▲Jang Gyeong-bok lies on the bed of Asan Medical Center in Seoul

After the unexpected accident happened in December 2015, Jang’s wife and son spent sleepless nights for a month on the floors of the intensive care unit and the waiting room.

“It was December in winter, and I just slept curled up on a thin blanket. I cried myself to sleep. I don’t know how much time I spent like that with my son,” she said. “When I think about it now, that was the most terrifying and frightening moment.”

One day, Jang’s son received a call. It was from Asan Hospital’s legal team.

“Don’t worry, we will provide support costs for the caregiver and equipment like diapers that are necessary to take care of your father,” the legal team staff said. At that time, it was a proposal that relieved the Jang family.

At the same time, the hospital suggested to Jang’s wife to move her husband from the intensive care unit to a single-room ward.

“Why do we have to move him when he hasn’t even woken up?” she protested at first.

She also asked why he had to move to a single-room, more expensive than a shared room. But she had no choice but to agree to the hospital.

“The hospital staff said, ‘The patient can remain stable if he gets there. He can receive rehabilitation treatment there as well. If he stays here at the intensive care unit, he can’t get that treatment. So he should move.’ You know, we really don’t have much idea about all this. I thought we had to move because he would be able to receive rehabilitation treatment and be treated well there.”
Go Jeong-soon, Jang’s wife

The initial response and commitment of the hospital’s legal team were clearly effective in calming the family.

After Jang was moved to a single-room, his wife received a medical invoice charging a total of about 10 million KRW (USD 7,568) in January 2016. Then, the hospital’s legal team took the invoice, saying that there was a miscommunication. Since then, no medical fees have been charged.

The family hired a caregiver following the instructions of the hospital. The monthly cost of 2 to 3 million KRW to hire a caregiver was a huge burden, but the hospital sent the expenses to her account each month.

At the time, she never expected that the hospital would file a lawsuit to pay all the medical expenses back and to return all the costs of the caregiver.

▲The lights are on in the Asan Medical Center wards late at night.

Holding the hospital accountable for the medical accident

Jang’s family believed that the medical accident was attributable to the medical staff’s carelessness. They thought the hospital would have no choice but to admit the mistake.

However, there was no amicable agreement and mediation. This led the family to file a lawsuit holding the hospital accountable of medical negligence and claiming compensation for damages, in July 2016, half a year after the accident.

In September of the same year, the first hearing of the first trial was held at the Civil Division of Seoul Eastern District Court in charge of medical cases. At that time, Jang’s family did not realize that time was not on their side.

They argued that Jang’s doctor, who was a resident at Asan Hospital at that time, took out the bronchial tube a day after the second operation, and this could only be regarded as the medical staff’s negligence and violation of the duty of care. They also claimed that there was negligence in the emergency treatment process after the patient began experiencing breathing difficulties. In short, the family argued Jang suffered hypoxic brain damage because of the medical staff’s fault.

Asan Hospital insisted that it was not the staff’s negligence. It argued that the bronchial tube was removed after the pre-examination without any problems, and the medical staff could not have expected a sudden airway obstruction.

In particular, the hospital blamed Jang for the failure of emergency procedures, arguing that the resident tried to secure the airway immediately after Jang fell into shortness of breath due to airway obstruction.

Here is how Asan Hospital views patient Jang Gyeong-bok.

“At the time when the intubated tube was removed on November 28, 2015, the patient was a 51-year-old male, 180cm tall, and weighed 100 kilograms with a body mass index (BMI) of 30.86. He had high blood pressure of 140/97mmHg. Based on records from the first outpatient visit, he had a habit of smoking more than one pack of cigarettes a day for the past 30 years and drank more than two bottles of soju a week.”
Asan Hospital’s litigation attorney

Basically, the hospital picked Jang’s physical condition and lifestyle as a cause of not only shortness of breath due to airway obstruction, but also the failure in the first emergency procedure which could have prevented brain damage.

“Even though the medical staff performed cricothyroidotomy as an emergency procedure to secure the patient’s airway, the patient was in a physical condition in which it was difficult to find his cricothyroid membrane. He was, because he was highly obese with a body mass index (BMI) of 30.86 and had smoked for more than 30 years. For these reasons and others, the possibility of success was not clear.”
Asan Hospital’s attorney

However, it is not only obese patients who may face a high probability of cricothyroidotomy failure according to related studies.

Several studies show that for women, it is difficult to find the exact location for the incision because the women’s thyroid cartilage is less protruded than men. This means if a female patient undergoes cricothyroidotomy in an emergency like Jang and fails, the patient may be blamed for just being a woman.

The use of ultrasound often determines the success of cricothyroidotomy.

An overseas study, which used cadavers, shows that the median time taken to find the cricothyroid membrane by ultrasound was 3.6 seconds, and that the median time to perform cricothyrotomy was 26.2 seconds with a success rate of 95 percent.

“This study suggests that there was no relationship between body mass index (BMI) and the time taken to perform the procedure, and this implies that patients with airways of complicated shape can receive the procedure in a time similar to that of a person with that of a normal shape.”
Yang Hat-bit et al., 2015

Some studies also take into account that it would have been difficult to try the ultrasound amid the urgent emergency that Jang was facing. Thus, there are studies that examine how medical staff should deal with such emergencies. A study by Curtis et al. suggests a method of pre-marking the exact location of the cricothyroid membrane using ultrasound for people with high BMI.

In short, according to different studies, there is a way to increase the success of cricothyroidotomy for obese patients with high BMI – like Jang.

▲Lee In-jae, a medical lawyer, talks about Jang’s case.

Experts say that Asan Hospital medical staff could have prepared in advance for a patient of health conditions such as high obesity, as it is unfavorable to successful tracheal tube extubation and emergency treatment.

Lee In-jae, former president of the Korean Health Lawyers Association (KHLA), is an expert of this view. He has experience in providing legal advice to major tertiary hospitals and is currently a non-executive member of the Korea Medical Dispute Mediation and Arbitration Agency. After reviewing the case including the verdict, he shared his opinion with Newstapa.

“The patient has a thick neck and is obese, so it is easy for tracheal extubation to fail,” Lee said. “What if tracheal tube extubation and emergency treatment were performed with a more experienced doctor backing up instead of having only one inexperienced doctor? Then, they might have been able to prevent hypoxic brain damage. Personally, that is so unfortunate.”

At that time, the doctor who faced the emergency while removing the tracheal tube was only in his first year in residency. The doctor, who carried out the two surgeries and was supposed to direct and supervise the resident, was on leave.

Asan Hospital’s attorney: “It was an unpredictable accident”

Likewise, the case looked favorable to Jang but that’s not what happened in the courtroom. The trial went against Jang and his family.

The court concluded that the causal symptoms of dyspnea after the tube was removed were “unpredictable” for the medical staff. The court wrote that was because general testing was conducted immediately before the accident to determine whether the tube could be removed at the moment or not, and that the results were fine.

However, the Asan Hospital’s claim at that time makes one doubt the situation was really unpredictable.

“The cause of airway obstruction, in this case, is airway edema (airway swelling) or airway spasm (which also results in airway obstruction). It appeared acutely and could not have been predicted…”
Asan Hospital’s legal attorney / Translation of the original text

This shows that the hospital pointed out airway spasm as one of the two causes of Jang’s breathing difficulties. In fact, the airway spasm suspectedly appeared during Jang’s second surgery.

“Airway was not open enough due to airway secretion or airway spasm during the surgery (On Nov. 27, 2015, according to the anesthesiology staff, the airway patency was not good due to secretion or due to spasm),” the anesthesiologist wrote in the medical record after Jang’s second surgery.

This means, the medical staff in charge of Jang was apparently aware of the anesthesiologist’s opinion. Jang’s doctor, the resident, signed the medical record.

Nevertheless, it is unclear whether the medical team, including the resident, couldn’t think of the possibility of airway spasm’s recurrence before removing the tracheal tube and causing breathing difficulties, or whether there was no need to prepare for an emergency, unlike a normal patient.

All this was not recognized as an important issue in the trial, and the court went by without making any judgments on these points.

The court also concluded that there was no problem with the resident’s decision to execute the first emergency procedure immediately after Jang had trouble breathing, and with the procedure itself. It was an unprecedented tragedy for him, but statistically, it could happen to one in ten people.

“In the case of cricothyroidotomy, recent studies show that the failure rate of the technique itself is about 10 percent,” the court ruled. “So the success of the technique alone cannot determine whether the action itself is appropriate or not.”

The court decided that the emergency treatment procedures at Asan Hospital were all appropriate, because Jang still survived.

“Conversely, the situation can be interpreted that the patient who was likely to die due to sudden airway obstruction survived with brain damage through appropriate emergency measures by the defendant hospital’s medical staff, and the prognosis improved.”
First trial court ruling

In the first trial, Asan Hospital’s medical negligence was not recognized at all, freeing the hospital from any liability for damages.

Instead, the court decided that the hospital should pay solatium, as it’s difficult to view that the medical team fulfilled the “obligation to provide a specific explanation on the risk of extubation processes such as breathing difficulties and hypoxic brain injury due to airway contraction, including laryngeal edema after extubation,” before the tracheal tube was removed.

Officially, the ruling was partially in favor of the plaintiff. Yet, it made Jang and his family suffer a big loss with a small gain.

They thought this was an injustice. They could not understand why their husband and father was lying in bed in a vegetative state if it wasn't the hospital’s fault. The first trial took three years, during which the judges were changed twice. Seven years have passed since the accident, and the family still believes it was Asan Hospital’s fault.

Caregiving cost support was cut-off, Live shattered

Jang’s wife and children filed an appeal against the decision. As the lawsuit prolonged, the family’s life changed.

The restaurant, which Jang left to his son before hospitalization, eventually had to close down. The son had to leave the theater stage in Daehak-ro, which was his dream.

“I was 25 when my father had the accident. After the accident, I was so devastated that I could do nothing,” he said. “My mother must be the one with more severe emotional distress.”

Now he works as a restaurant assistant to pay for his father’s caregiver cost and other bills.

▲ Jang Gyeong-bok’s son is interviewing with Newstapa.

Jang’s wife stays in the hospital room for nearly 15 days each month to take care of her husband. She studied during her spare time to obtain certifications to work as a senior care worker and a patient caregiver. However, the certifications are not much of a help for the family’s income, because she cannot work full time due to her husband.

The second trial reached a conclusion earlier than the first trial. This time, the Seoul High Court’s division, which exclusively deals with medical cases, handled Jang’s case. Exactly two years after the appeal was made, the court delivered its verdict. The ruling was even worse.

As it was in the first trial, Asan Hospital’s medical negligence was not recognized. The alimony for Jang and his family was significantly reduced to one-fourth of the initial ruling. In the first trial, the alimony that Asan Hospital had to pay to Jang, his wife, son and daughter was KRW 80 million (USD 61,604) in total. However, the court of appeal ordered the hospital to give only KRW 20 million for Jang himself, saying that there was no reason to pay alimony to his family, because Jang was the only person who lost the opportunity to choose because of not hearing the doctor’s explanation. The fact that he was clearly conscious right before the accident backfired.

The hospital started to counterattack the Jang family in the appeal’s court. This was driven by the decision of the first trial that discharged the medical staff from the liability for medical negligence.

Now, the hospital has filed a countersuit against Jang. It insisted that the patient should pay the full amount of the medical expenses, which the hospital had not charged for more than five years, and the caregiver expenses, which the hospital paid every month. The court decided that the caregiver cost was only being paid on behalf of the hospital and that the patient gained unfair profits thanks to the hospital.

According to the hospital’s claim, the amount of money the Jang family owed totaled to KRW 340 million (USD 261,663), KRW 143 million in unpaid medical bills and KRW 205 million in caregiver expenses to be reimbursed. The hospital’s favorable responses and all the promises made immediately after the accident became something only the Jang family remembered.

In the end, the court concluded that the Jang family didn’t need to reimburse the caregiver expenses as “it is clear that it was not remitted by mistake.” However, for the medical expenses, it was determined there was no evidence to prove the hospital agreed that Jang was to be exempted from the full medical bills. Accordingly, the ruling ordered Jang’s family to pay KRW 68 million (USD 52,332) of medical expenses worth three years, which remains in the limitation period, should be paid to the hospital.

It was a huge burden for the family. The medical expenses were greater than the alimony to be received from the hospital. The family is in debt close to KRW 50 million (USD 38,480) excluding the alimony. In addition, Asan Hospital has stopped sending caregiver expenses to Jang’s wife since January 2022.

They had hopes for the Supreme Court. The family submitted an appeal but it was dismissed three months later. The Supreme Court decided that the case was not to be heard directly by the Supreme Court justices. Nearly 77 percent of all cases submitted to the Supreme Court in 2018 were dismissed this way. In particular, most medical lawyers say that most appeals in medical litigation are rejected.

“If the cricothyroidotomy was successful, hypoxic brain injury would not have occurred,” said a professional examiner who reviewed the medical records in the appeals suit.

In early 2022, Asan Medical Center created a training video for cricothyroidotomy informing as follows: “If you actually touch it, the cricothyroid membrane is very small, about 1 cm, so you need to practice often to find this part promptly in an emergency.”

Without experience, equipment available for a quick procedure can be useless.

Asan Hospital explained the reason for producing the video was “to improve proficiency because there is hardly any practical use although the cricothyroidotomy kit is available in the hospital for emergency needs.”

“The resident must have learned a lot. ‘The bronchial tube is not to be carelessly removed after neck surgery, and it can lead to an emergency, and shortness of breath in which case immediate emergency treatment should be conducted.’ Other medical staff at Asan Hospital had real-life training on how a dangerous accident like this may occur at the high cost of victimizing the patient. After all, the medical team would act more carefully through this patient’s sacrifice, but it is too harsh for the patient to endure this.”
Park Ho-Kyun, Jang’s attorney

▲Jang in a vegetative state is lying in a hospital bed

The obligation to leave the hospital

When the appeals trial was decided at the end of 2021, Asan Hospital intended not only to receive medical and caregiver expenses but also to get Jang to leave the hospital ward.

The hospital requested a court ruling to legally deny medical treatment to Jang, the long-term hospitalized patient. It was a last resort strategy even for such a large hospital, and is rare in medical litigation cases in Korea.

The Seoul High Court accepted the hospital’s claim and made its ruling: “Jang is obliged to leave the hospital ward in this case.”

At the same time, the unpaid medical expenses, which the appeals court recognized, played a role as an excuse for the Asan hospital to pressure Jang’s discharge.

Jang’s wife is afraid of phone calls from the hospital.

“I get super nervous when getting a call from the hospital,” she said. “Sometimes I just push my phone away.”

Shortly after the Supreme Court ruling, an Asan Hospital’s legal team staff called her.

“We have to get all the expenses reimbursed,” the Asan staff said. “So, we will check (your asset) whether it is a house, real estate, or personal property. There is no choice but to order the provisional seizure, anyhow.”

Why had the court of appeals ruled that Jang, a patient in vegetative state, had to leave Asan Hospital?

At a recent meeting with Newstapa reporters, Jang’s son had a chance to re-read the appeals court ruling of his father’s case.

After a moment of silence, he stopped at a paragraph and said “How violent it is.”

The Seoul High Court put forward a new, unprecedented logic, which had not been seen in any previous hospital room eviction lawsuits.

Continues in the Part 2

제작진

Reporting	Hong Woo-ram, Kang Hyeon-suk
Video Reporting	Kim Ki-cheol, Jeong Hyeong-min, Shin Young-chul, Lee Sang-chan
Video Editing	Park Seo-young
CG	Jung Dong-woo
Design	Lee Do-hyeon
Web Publishing	Heo Hyeon-jae

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