Jury rejects claim that patient woke up during surgery performed by UCSD Medical Center

After five weeks of testimony, a San Diego County Superior Court jury took just a day Feb. 16 to clear UC San Diego Medical Center and a former anesthesiologist of accusations by a patient who said he awoke during surgery at the health system’s Hillcrest hospital.

The lawsuit by Randy Dalo and his wife, Karen, 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 awoke, 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 later found out that Hay had injected himself with powerful opioids before and after the surgery. He was found on the floor 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, an 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 allowed Hay to continue to work though he had been treated a decade earlier for his addiction at an outpatient clinic.

UCSD officials denied any cover-up and said Hay had deceived them about his relapse and stealing drugs — something the doctor admitted in a deposition and on the stand that he did hundreds of times. Lawyers contended that Dalo’s dream was not from insufficient anesthesia but likely was 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 and indicated he was deeply asleep. A series of experts also testified at the 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.

UCSD issued a statement thanking the jurors for their service but did not comment about the trial or its outcome.

Eugene Iredale, the lawyer for the couple, said the case is not over. He said he plans to file a motion for a new trial, and if unsuccessful, he would appeal. He said he also 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 before the Dalo surgery.

A patient said in a lawsuit that he awoke during surgery at UC San Diego Medical Center in Hillcrest.

(Nelvin C. Cepeda / The San Diego Union-Tribune)

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 the anesthesia he required.

“There is no way physiologically possible that Mr. Dalo was awake,” Michael Weiss, the lawyer for UCSD, said in closing arguments Feb. 15.

Weiss pointed to evidence like a neuromonitor that tracked Dalo’s brain activity during the surgery and other gauges as 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 its duty to care for patients. That, too, had caused the couple “significant emotional distress above and beyond the intraoperative awareness,” Iredale said after the verdict.

During closing arguments he said jurors should award each of the Dalos $5 million to $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.

During the trial, defense experts characterized Hay as a “high-functioning addict,” meaning he could use drugs daily — he said in a deposition that 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 confronted Hay, correctly suspecting he was using drugs then. Hay went to rehab and returned to UCSD under a series of one-year contracts and being monitored by a hospital committee. He gradually earned more freedom in his work.

He remained sober 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. ◆