Outpatient flub leads to $25M wrongful death verdict—and a site-of-care warning for physicians

The family of patient Erric Gilbert won more than $50 million after bringing a lawsuit against staff at the The Portland Clinic—a private, multi-speciality group serving patients in Oregon. Gilbert died in 2018 at age 43 during a routine in-clinic colonoscopy, according to reports from the Courtroom View Network (CVN).^[]

Gilbert sought the procedure after finding blood in his stool. Comorbidities included obesity, sleep apnea, and high blood pressure—medical issues that would have warranted the colonoscopy’s being performed in a hospital setting, not in an outpatient clinic.  

After anesthesia was administered, Gilbert’s oxygen levels dropped, and his blood pressure increased. Despite this, the lawsuit alleges, the clinic's medical staff failed to provide emergency resuscitation promptly. 

Surgical tech catches what the doctor didn't

According to the CVN, the gastroenterologist performing the colonoscopy, Young Choi, MD, continued with the procedure despite being alerted by Kathryn Carlson, the sedation nurse, to signs of respiratory distress. David Stellway, MD, the anesthesiologist, also did not tell Dr. Choi to stop the procedure.

“They arrive and find the staff in chaos and no CPR being given, even after the code,” the attorney said to CVN. Gilbert had irreversible brain damage and was put on life support but died shortly after. The family was awarded about $25 million in total damages, with culpability being assigned to anesthesiologist Dr. Stellway and the Portland Clinic as a whole.^[]

“The jury awarded $24.6 million to the victim’s family. The pre-trial offer was $500,000. That gap tells you how badly this case was underestimated,” says Angel Reyes, a personal injury attorney and managing partner of law firm Angel Reyes & Associates. 

Are outpatient settings inherently riskier?

Carmen Fong, MD, FACS, a colorectal surgeon and Chief Medical Officer at Bummed, explains that the majority of colonoscopies are performed outside of hospitals in outpatient facilities. She notes that these centers can either be freestanding or connected to a hospital, and they may or may not be associated with the hospital.  

“Doing colonoscopies inside a hospital isn’t preventing any injuries. It only facilitates faster access to care if needed,” Dr. Fong says. “But most outpatient settings have strict protocols to transfer or monitor patients who may have had a complication….” Healthy patients, she says, “can safely be done as an outpatient.”

“Despite Mr. Gilbert exhibiting pre-existing risk factors like high blood pressure, obstructive sleep apnea, and a high BMI, he was sent to a lower-acuity outpatient setting instead of a hospital that is better positioned to address any complications that could stem from these issues," Malhotra adds.

“When complications arose during the procedure, and the facility lacked the immediate resources to respond, that gap between the patient’s needs and the setting’s capabilities is a central liability argument,” he says. This breach of duty is a legal cornerstone of wrongful death claims—and it made the outpatient setting in this case one of the most powerful pieces of evidence for the family’s attorney.

Senior trial attorney Parham Nikfarjam at J&Y Law says even routine procedure risk can be underestimated. “[Patients] don’t really read the fine print of the waivers they’re signing,” says Nikfarjam. “Colonoscopies happen every day, and that can sometimes lead providers to become less reactive to early warning signs because they’ve done the procedure hundreds of times without incident. Unfortunately, families only need the system to fail one time for that family’s life to be forever changed.”

The bottom line

“We do need to make sure that all outpatient endoscopy settings are strictly following the same safety protocols,” Dr. Fong says, “[with] trained and certified endoscopists and assistants, standardized sterilization techniques for equipment, experienced anesthesia care, and well-staffed post-operative units.” Associations like the Society of Gastroenterology Nurses and Associates (SGNA) are at the forefront of these changes.

Hospital-only colonoscopies could also present problems, Dr. Fond adds: “Trying to shift colonoscopies back into the hospital might make things cost-prohibitive for people who already cannot access care. In addition, there are always increased risks of getting a nosocomial infection of some sort every time you’re in a hospital. So the more we stay out of hospitals, the healthier we should be.”

“My view is that colonoscopies are one of the best things we can do to prevent colorectal cancer, so the more screening we do, the better,” Dr. Fong emphasizes. “With rising healthcare costs, the shift is towards outpatient care, which I think is fine and safe, as long as the facility has proper monitoring and transfer protocols if needed.”