[Congressional Record Volume 164, Number 196 (Wednesday, December 12, 2018)]
[Extensions of Remarks]
[Pages E1659-E1662]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              INFORMATION ON THE PATIENT'S BILL OF RIGHTS

                                 ______
                                 

                         HON. RICHARD M. NOLAN

                              of minnesota

                    in the house of representatives

                      Wednesday, December 12, 2018

  Mr. NOLAN. Mr. Speaker, I rise today at the request of Mike Menning 
who hopes that, by sharing his story, no other family will have to go 
through what he and his family have.

                    Dropped Off the Operating Table


   Dawn Menning was Dropped off the Operating Table at Intermountain 
      Medical Center Hospital, Salt Lake City, UT on March 3, 2017

             Dawn Menning's Narrative About Injury and Pain

       Let me begin by recalling what I can about the abdominal 
     hernia surgery and resulting incident.
       At least a year prior to March 2017 I visited Dr. Kelly 
     Nolan about the growth in an abdominal hernia I was 
     observing. She noted that it would be a repair of an earlier 
     surgery in 1996 and would require a more invasive approach.
       In early 2017 after visiting my regular health care 
     physician, Dr. Nancy McLaughlin, Madsen Clinic--University of 
     Utah, and recognizing that the hernia had indeed grown I made 
     the decision to go forward with the surgery.
       I visited Dr. Nolan at IHC for a pre-op appointment. I 
     spoke to her at length about my concern about the Homozygous 
     Factor V Leiden blood condition that I have--the challenge 
     and potential for blood clotting following surgery. She asked 
     if I could seek advice from my regular doctor or a hematology 
     specialist. Since I had never seen a specialist I contacted 
     Dr. McLaughlin who consulted with Dr. David Kaplan at the 
     University of Utah Clinic. He strongly advised against using 
     regular anticoagulants since the surgery was going to be in 
     the abdomen area and the shots, Lovenox, are administered 
     into the belly area. He suggested the use of a pill instead.
       I contacted Dr. Nolan who called me back to say she had not 
     used the pill and advised to use Lovenox as she had 
     prescribed. I purchased the Lovenox 100 mg. on February 28. I 
     began using the shot one time on March 2, the day before 
     scheduled surgery.
       I was told to NOT use the Lovenox 100 mg. on March 3, the 
     day of surgery, but resume using it the day after for ten 
     days following

[[Page E1660]]

     surgery--two shots into the belly area each day.
       Now onto the day of surgery as best I can remember. I 
     entered surgery feeling very well and was wondering how I 
     would feel following. I felt I was a pretty strong, healthy 
     70-year-old woman.
       I waited for quite awhile in the hall prior to surgery and 
     noted that the attendant reached for a green flat toboggan 
     like piece of equipment that I assumed was placed under a 
     patient for transport. It had handles on the side as I 
     remember. I even thought, well, I suppose that's how I will 
     be transported from the gurney on which I was lying to the 
     operating table.
       The anesthesiologist came into the hall to introduce 
     himself and assured me that they would monitor that I was 
     asleep during the surgery.
       Finally I was wheeled in. They asked if I felt comfortable 
     moving myself onto the table and I assured them that I was 
     able. I do not remember what was or if there was anything 
     under my body.
       Very soon I was off into another world.
       The next thing I knew I was wheeled out of the operating 
     room by a female attendant and greeted by my husband who was 
     very alarmed. His first words were something like--I am so 
     glad you are alive or something close to that. I asked him 
     what in the world he meant. He said, ``Well, did you know 
     that you were dropped to the floor while being moved to the 
     gurney?'' I actually thought he was joking and said the same.
       Marion responded with, ``No, I am not joking! They came out 
     and told me that while they were moving you the gurney was 
     not properly locked and you fell to the floor. The 
     anesthesiologist tried to brake the fall by extending his leg 
     and even hyperextended his knee.'' He said Dr. Nolan had come 
     to tell him and said they had examined me and found no 
     evidence of injury but would be sure to examine me further 
     before discharge.
       I was wheeled back to the room and did not lose 
     consciousness again. Very soon I was pretty stable and the 
     attendant suggested that I could get dressed and leave as 
     soon as I wished. She recommended that Marion attend me in 
     dressing and take a look if there were any bruises or 
     evidence of injury. There was no one else of hospital 
     personnel who took a look at my backside or the incisions. 
     Dr. Nolan told me at my post-operative exam that she had come 
     to see me but I had already left for home. (It would seem 
     that in the case of the fall she would have been there soon 
     to see how I was doing.)
       We arrived at the hospital in the morning and less than 
     five hours I was back home.
       I had been prescribed pain medication (Norco 5 mg 1 to 2 
     tablets every four to six hours as needed) and used it as 
     prescribed.
       I resumed the use of the Lovenox 100 mg two times a day for 
     five days. Since I would not have enough 10 more doses on 
     March 8.
       The weekend was rough--I experienced much pain and 
     discomfort. I was not able to get up off the couch and was 
     thankful for a bar next to out toilet. Getting into bed 
     required the help of Marion, lifting my legs into bed and 
     even helping me to get up off the bed and turning.
       By Monday morning the pain was increasing--rising into my 
     right side rib cage area. By then bruising in the abdominal 
     area had grown far beyond the incision area.
       We called Dr. Nolan's office and were invited to come to 
     the office for examination. She checked my incision noting 
     that it was no oozing and agreed to order x-rays. She checked 
     the x-ray and said there was no evidence of cracked ribs and 
     said I should try to cut back on the pain medication as I was 
     able, perhaps using some Ibuprofen in between doses of Norco 
     since it has a high risk of addiction and dependence and a 
     side effect is constipation which is always a challenge for 
     me. Dr. Nolan also explained that she had not seen exactly 
     what had happened since she was doing charting off to the 
     side and didn't see anything until she heard a commotion and 
     saw I was on the floor. She did not offer details of number 
     of people but did retell us that the anesthesiologist had 
     hyperextended his knee.
       I resumed my recovery at home. My husband made a visit to 
     the hospital to inquire about the fall. He did not receive 
     too much information but invited the Risk Management Staff to 
     at least offer an apology and visit me at home.
       The rest of the week went pretty much the same although in 
     addition to the bruising my abdomen area was swelling and 
     tender. The bruising had spread out, down and up.
       On March 8 by recommendation of the Dr. Nolan I purchased a 
     pain medication that would assist the transition from 
     narcotic medications to less strong medications--Triamino 20 
     mg. I tried using this but was longing for the Norco since 
     the pain was so intense.
       During the night on Thursday, March 9 I had so much pain 
     and the pain medication was not helping. We went to the ER at 
     IMC. They noted intense pain, tender to the touch on my 
     abdomen. They started me on an IV for fluids. I begged for a 
     stronger pain medication but did not receive if for several 
     hours.
       They did chest x-rays. An ultrasound and I don't remember 
     what else--but the ultrasound clearly showed that I had a 
     large hematoma in the abdomen area! This was obviously the 
     cause of the increased pain--the pressure on the incision and 
     the mesh that was used was causing intense pain.
       Twelve hours after arriving I was admitted to a room. They 
     finally started me on an IV pain medication. After just a few 
     hours they said I could be discharged and they would give me 
     a stronger pain medication to take home. I declined insisting 
     that I wanted to be sure I was ahead of the pain before going 
     home. They also discontinued the use of the Lovenox shots. 
     The explanation was that since I had developed a hematoma the 
     blood thinner could interfere with my body's ability to 
     absorb the blood in that area. They explained that since 
     blood in a hematoma is very sticky it wasn't possible to 
     drain the collection but it would be a long process for my 
     body to deal with this. I was told to NOT use Ibuprofen since 
     that is a mild anticoagulant.
       I returned home on March 11. I was given Norco 7.5 mg--a 
     stronger dose--one tablet every 4-6 hours. I was eager after 
     four hours!
       The next week is kind of a blur--time passed with a perch 
     on the couch, in our bed (continued needing help to lift my 
     legs) and a few visitors.
       On Monday, March 13 we had a visit from IHC. They brought a 
     lovely bouquet of flowers and were very sympatric but oh, so 
     careful about what had actually happened. They were evasive 
     about how many people were present.
       That week I tried to resume some sort of ``normalcy'' to my 
     life. I went out for short periods of time. I was able to 
     move a little easier and didn't need assistance for getting 
     in and out of bed. However, the pain never left me.
       Now onto March 23--I went to visit my primary doctor, Nancy 
     McLaughlin, to report what had happened. She was very alarmed 
     and concerned about the resulting blood problem. I reported a 
     very poor urinary stream and she assured me that this could 
     all be the result of weakened muscle tone and should improve 
     in time.
       Time moved on and I even tried unsuccessfully to resume 
     water aerobics that I enjoy. The pain was too much.
       On May 3 I visited Dr. McLaughlin again. She noted 
     abdominal pain and pain in my right buttock. She spoke to me 
     again about the H/O hypercoagulable state. She was also 
     pleased that I was scheduled to visit a hematology 
     specialist.
       On May 4 I visited Dr. David Kaplin, Hematology. He noted 
     the evidence of a rectus sheath hematoma, sequel and 
     Homozygous Factor V mutation. He was careful how to cast 
     blame but said he certainly would not have recommended the 
     Lovenox shots since they thin the blood and area administered 
     right into the area close to the incisions. He said there are 
     articles speaking of the ill effects of using this 
     anticoagulant for abdominal surgeries. When I asked him--
     could this have been caused by the fall he answered--caused, 
     yes perhaps but surely exasperated by the presence of blood 
     thinners. He said in a court of law would he be willing to 
     say one or the other was the cause? No, but surely both 
     played a part. I went home with more information than I had 
     come with.
       Life went on--the pain was not gone. The swelling had 
     reduced but the muscle tone in my abdomen was very poor. I 
     tried resuming some exercise but experienced pain if I pushed 
     a bit to hard.
       The pain in my right buttock improved through 
     recommendations from a physical therapist friend to do a set 
     of exercises in our home.
       I can honestly say that I had pain, a kind of pulling 
     muscle pain, well into July 2017. I was cautious with lifting 
     and reaching. Sudden twisting caused a jolt. My stomach area 
     remained sensitive.
       Today--I do have occasional pain in my abdomen area but I 
     have no way of determining if that is from the surgery and 
     invasion of four incision point and the one small incision 
     where the mesh was inserted OR the residual effects of the 
     hematoma.
       In looking back it appears to me as if there were a 
     succession of errors that caused my pain and suffering.
                                  ____


                               The Story

           As told by Mike Menning, Husband/Power of Attorney

       On Friday, March 3, 2017 my wife, Dawn Menning, a 70-year-
     old woman, was dropped from the operating table onto the 
     floor as she was being transferred from the operating table 
     to the gurney at the Intermountain Medical Center. Dawn had 
     what was supposed to be a routine surgical procedure to 
     repair an abdominal hernia. After the procedure Surgeon Dr. 
     Kelly Nolan came to report to me how things went. She 
     explained that the surgery went well, however at the end she 
     said, ``there is one other thing that you should know. Your 
     wife was dropped from the operating table onto the floor.'' 
     Dr. Nolan went on to say that she didn't think Dawn received 
     any major injury. She did add that I should ask the nurse in 
     charge to check Dawn over for any major bruises before she 
     was released from the hospital. Although I asked the nurse in 
     charge to do so, she did not.
       A little background--not much consideration was given 
     before surgery in regard to the fact that Dawn has a blood 
     clotting condition, Factor 5 Leiden. Consequently extra 
     precautions needed to be taken to respect the potential of 
     blood clots following surgery. Advice from her primary 
     physician was to use an oral medication to deter clotting. 
     However, the decision from Dr. Nolan was that she would begin 
     shots of Lovenox given into the belly three days prior to 
     surgery and ten days following. This medical condition should 
     have been emphasized to the surgical staff so that precaution 
     and extra concern should have been a high priority during and

[[Page E1661]]

     following surgery. Extreme caution and tender handling should 
     have been taken in the move to prevent possible bruising or 
     even a hematoma in the area of the surgery--right near the 
     point of entry of the blood thinner.
       I stayed in the waiting room bewildered by this news until 
     I received the call from recovery to meet Dawn. It took a 
     very long time before I received the call that she was on her 
     way. I met an attendant coming out of the elevator pushing 
     Dawn on the gurney. I expressed my joy in seeing her and 
     asked her if she knew what had happened. I told her that she 
     had been dropped off the operating table onto the floor. She 
     didn't believe me at first, she thought I was joking. The 
     nurse said, ``Yes, she was dropped, but it was a controlled 
     fall.'' This is the first I heard the words, ``controlled 
     fall.'' I thought, now what does that mean? It was very 
     obvious that the reason it took so long to get her out of 
     recovery may have been because the medical staff had to have 
     time to get their story together and make sure they were all 
     on the same page.
       That afternoon, even before Dawn was discharged, I went to 
     see the IMC administrator Joe Mott. He called in Ms. White, 
     Patient Relations. I explained what had happened. Mr. Mott 
     said to me, ``What do you want me to do about it?'' I said 
     your surgical staff violated my wife's unconscious body and 
     personhood. The least you could do is apologize. He said they 
     would stay in touch.
       Dawn was discharged and did not see the surgeon again that 
     day. The medical staff completed no further examinations. The 
     nurse suggested that when it was time for my wife to get 
     dressed, I should assist her and I check for any evidence of 
     bruising.
       On Monday, March 6 Dawn and I went back to visit with the 
     surgeon, Dr. Kelly Nolan. Dawn was experiencing very sharp 
     pain in her right abdomen and wondered if she could have 
     broken ribs. Dr. Nolan ordered x-rays. She said although she 
     was in the operating room at the time of the fall she did not 
     see what was happened until she saw her patient on the floor. 
     She also explained to us what was meant by the ``controlled 
     fall.'' Apparently the anesthesiologist stuck out his leg 
     under her head and supported her as she fell as best he 
     could. We were not told what appliances or means were being 
     used to transfer. They claim the gurney was not locked and 
     slid away. Who, why and how many were involved--we did not 
     know. The unanswered questions did not help to answer the 
     question, ``why did she have so much pain in a large area of 
     her abdomen?
       NOTE: Years ago I served on an volunteer ambulance team in 
     our hometown in Minnesota. I was a trained in Advanced First 
     Aid for ambulance personnel--today's equivalent of an EMT I 
     know from personal experience if the transfer is properly 
     done, it is almost impossible to drop a patient.
       Three days later the pain was increasing--not getting 
     better at all. During the night of Thursday, March 9 Dawn was 
     experiencing uncontrollable pain, even using the strongest 
     pain medication she had been prescribed. I took her back to 
     the hospital to the emergency. They kept her there for a LONG 
     time, in fact, twelve hours, attempting to get her pain under 
     control--not successfully. They did recommend the Lovenox be 
     stopped--only after further tests--CAT and ultrasound--which 
     clearly showed a large hematoma. Her abdomen was filled with 
     blood!
       Pain continued for months, including a bout with extreme 
     pain far below the site of the incision as well as pain down 
     the right side of her backside and leg.
       About ten days after the ``incident'' two people from IMC 
     came to our home, one from the Risk Management Department and 
     one from Patient Relations. They apologized for what happened 
     and gave Dawn a bouquet of flowers. I asked if we could see a 
     copy of the ``incident report.'' We were told that was not 
     possible because under the law it is sealed. Risk management 
     controls IMC's risk WOW--not comforting when my wife 
     continued to experience severe pain. Risk Management repeated 
     the report about ``controlled fall.''
       My wife did go to the Department of Records to obtain the 
     medical records from the hospital. They made reference to the 
     fall, but did not explain how it happened or what really 
     happened. IMC did not release the incident report, because 
     under law the incident report is sealed, property of the 
     hospital.

            My Response in the Weeks Following the Incident

       I consulted attorneys from four well-known law firms. Each 
     one told me that they would NOT take the case because under 
     Utah law it is impossible to win in the courts. They further 
     informed me that under Utah law, when an unconscious person 
     is dropped from the operating table during or after the 
     surgery that the patient and her legal representative are not 
     allowed access to the incident report. Under present Utah law 
     patients taking a case like this to court and winning is out 
     of the question because incident reports are sealed, 
     therefore the medical personnel and the hospital are immune 
     from prosecution. So, the result is; it is impossible to know 
     what has happened or how it happened. Therefore, there is a 
     great need for The National Unconscious Patient's Bill of 
     Rights.

                 Interesting Thought for Consideration

       ``Assume that you purchased your first car 50 years ago, a 
     1947 Cadillac convertible. You took immaculate care of the 
     cherished automobile; own the car today, and then took it in 
     for repairs. Also assume that you entrusted your beloved car 
     to one of the most modem and reputable repair centers in the 
     city, leaving it in the hands of highly qualified, 
     professional mechanics. You were invited to wait in the 
     service garage waiting area because garage and insurance 
     concerns do not permit you to watch the repairs being made. A 
     couple hours later the head mechanic meets you in the waiting 
     area to tell you that your car was dropped off the hoist onto 
     the concrete floor. No more information is given and all you 
     can do is take your broken car home. Later, you go back to 
     the repair center seeking answers and help for your car. You 
     see the repair center's manager and tell him what the car 
     meant to you. His response is, ``Well, what do you want me to 
     do?'' You say, ``Maybe you could start by apologizing.'' 
     About ten days later he and a couple of people from the 
     repair center come to your home to apologize and deliver a 
     bouquet of flowers. He says, ``You will be charged for the 
     original repairs and you need to know that under special 
     legislation for 'repair shop and mechanic protection', you 
     cannot get the report of how it happened or a report of the 
     damage to your car.''
       You may say, this is really a terrible comparison, and it 
     is. You see this happened to my wife, Dawn, whom I have loved 
     and cherished for more than 50 years. And now I compare her 
     to an old car--not even close--even an insult, but I think 
     you get the point.
                                  ____


  Dawn Menning Seeks Resolution by Promoting the National Unconscious 
                        Patient's Bill of Rights

       I will work to introduce and seek the passage of ``The 
     National Unconscious Person's Bill of Rights.'' This 
     legislation will include language requiring all medical 
     surgical procedures to be recorded by audio and video.
       In my search and input from a University of Utah doctor, we 
     can only find four times in recent U.S. medical history that 
     unconscious patients have been dropped off hospital's 
     operating tables.
       In the early 90's a lady from Denver area was dropped off 
     the operating table and was paralyzed from the neck down
       In the late 90's a 28 year old lady was dropped from the 
     operating table at the Clarion Hospital in Pennsylvania, 
     resulting permanent injuries
       In 2012 a 75 year old patient was dropped off the operating 
     table at Duke University Health System Hospital, he died of 
     complications a short time later
       In 2010 a patient was dropped off an operating table at St. 
     Joseph Hospital, Minneapolis MN, he died a short time later 
     of complications.
       We praise God that Dawn did not die from injury 
     complications or was paralyzed in the process.
       Now Intermountain Medical Center is recorded in these 
     statistics.
                                  ____


           The National Unconscious Patient's Bill of Rights

       The National Unconscious Patient's Bill of Rights shall be 
     placed in Federal Law; such shall include, but not be limited 
     to:
       1. All surgical procedures must be recorded by mounted 
     video camera and be kept in the patient's permanent record 
     for a period of two years.
       2. In the event of an incident or accident concerning an 
     unconscious patient, the hospital or medical clinic shall 
     maintain the recording as part of the patient's permanent 
     record.
       3. The incident reports and video shall be made available 
     to the patient and the patient's legal representative and can 
     be presented as evidence in a court of law.
       4. A patient shall have the right to know the names and 
     roles of the members of such person's health care team (taken 
     from the Virginia Commonwealth University Health System).
                                  ____


 Recent Historical Grounds for the National Unconscious Patient's Bill 
                               of Rights

       Legislators and others can lay the foundation for the 
     passage of legislation making video cameras mandatory in 
     medical clinics and hospitals where surgical procedures are 
     performed using the following examples. With today's modern 
     technology video recording of surgical procedures can be 
     provided at minimal cost.
       Consider previous precedents--
       1. In the State of Utah and other states the Departments of 
     Motor Vehicles mandate that all motor vehicle and emission 
     inspection technicians are videoed by camera as they do the 
     inspections. Any MV (motor vehicle) inspection facilities 
     shutting off the state-mandated video camera shall be fined 
     and/or have their license revoked. Surely if the State of 
     Utah requires the Motor Vehicle inspection to be videoed 
     doing their work, the legislature can pass legislation 
     requiring hospital to video patients under anesthesia the 
     same privilege.
       2. In the case of Andrea Constand vs. William Cosby Jr, one 
     of the issues was that Ms. Constand was abused while she was 
     in an unconscious state. Similarly, should a Utah law remain 
     on the books giving medical professionals and the 
     Intermountain Medical Center immunity from the law when a 70-
     year-old woman, my wife, was clearly abused while in an 
     unconscious state? The question is--was it an accident? Or 
     was it an incident? Whatever happened, we will not know 
     because there is no video and there are no means to obtain 
     the information legally. This is the heart of the matter.

[[Page E1662]]

  

       3. Most state and local officials, as well as the public, 
     encourage and support body and car cams for law enforcement. 
     These video cameras have been proven to be very helpful for 
     protection of policeman and the public.
       4. Consider the most recent case of Nurse Alexandra Wubbels 
     barring police from drawing blood from an unconscious 
     patient. Her position was that the unconscious patient has a 
     right to know what is happening to their body. She stood her 
     ground. The police thought they had a right under the law, it 
     didn't play well in the media. The end result, Salt Lake City 
     and the University Hospital settled for $500,000 payment to 
     Ms. Wubbels.
       Today's society will not longer accept gross mistreatment 
     of unconscious patients presently shrouded in secrecy. The 
     National Unconscious Patient's Bill of Rights will promote 
     the use of modem technology, cameras mounted and in use 
     during surgical procedures. Upon request from the patient 
     such recordings must be available to patient or assigned 
     legal representative. Doctors and medical staff will be held 
     responsible for their actions.

                          ____________________