$2.35 Million Dollar Verdict After Anesthesiology Procedure Leads to Deadly Injury

In this medical malpractice and wrongful death case, the plaintiff sued the hospital after a patient died from aspiration following complications in inserting a breathing tube before surgery. The jury awarded the plaintiff $2.35 million.

Syringe, medical injection in hand. Vaccination equipment.

ByCarolyn Casey, J.D.


Updated on June 28, 2023

Syringe, medical injection in hand. Vaccination equipment.

Case Overview

Case Name: Marshall Fox, Individually and as Administrator of the Estate of Jayne B. Fox v. Emory Healthcare, Inc., The Emory Clinic, Inc., John Doe and Jayne Doe, No. 16A60445

Case Type:

  • Wrongful Death – Survival Damages
  • Medical Malpractice – Anesthesiology; Failure to Treat; Failure to Detect; Failure to Diagnose; Wrong Site/Procedure


  • other – death; aspiration
  • sensory/speech – vocal cord, damage
  • pulmonary/respiratory – hypoxia; pneumonia; collapsed lung

Plaintiff Attorney(s):

  • Robin F. Clark; Robin Frazer Clark P.C.; for Marshall Fox , Estate of Jayne B. Fox

Defense Attorney(s):

  • Hunter S. Allen Jr.; Allen, McCain & O’Mahony, PC; Atlanta, GA for Emory Healthcare Inc. , Emory Clinic Inc.
  • Joscelyn M. Hughes; Allen, McCain & O’Mahony, PC; Atlanta, GA for Emory Healthcare Inc. , Emory Clinic Inc.

Case Outcome: Verdict-Plaintiff

Award Amount: $2,350,000.00

What Happened?

On Aug. 13, 2014, Atlanta’s Emory University Hospital admitted Jayne Fox, a 70-year-old retiree, for an evaluation of what seemed to be a spot on her right lung. That same day Dr. Roy Rajan performed a video-assisted thoracoscopic surgery (VATS) on Ms. Fox. When doctors do video-assisted thoracoscopic surgery (VATS) they make small cut(s) in the patient’s chest wall and insert a tiny camera and surgical tools into the chest. The camera provides images of the inside of the chest that the surgeon can see on a monitor to guide him or her during the procedure.

Two days after the surgery, a thoracic surgeon visited Ms. Fox in her hospital room and observed that she was very confused. He expressed concern over her 101-degree fever and a 15.4 white blood cell count. This surgeon thought she might have a collapsed lung or early pneumonia.

By August 18th, Jayne was still exhibiting confusion and had decreased oxygen levels. She was also having trouble swallowing pills and couldn’t clear her secretions. With her delirium, failure to thrive, and hypoxemia, the hospital moved her to the ICU.

Dr. Rajan noted on August 19 that Jayne had a weak voice and small cough, and was having difficulty clearing secretions from her throat. Rajan placed his patient on a nothing-per-mouth order. The medical team put a feeding tube in her stomach.

An ear, nose, and throat (ENT) resident, Doctor Brandon Kim, looked at Ms. Fox on Aug. 20, 2014 , noting that the patient had a “soft voice with weak cough and wet vocal quality.” Dr. Kim also said she failed a swallow study, showing signs and symptoms of aspiration.

Aspiration Pneumonia Diagnosis

The next day the hospital’s critical care physician determined that Ms. Fox had low oxygenation levels from aspiration pneumonia. This condition is a type of pneumonia that happens when a person inhales something other than air into their respiratory tract. Substances that can be inhaled include food, saliva, liquid, stomach contents, toxins, or a small foreign object.

The doctor also noted that Jayne had a vocal cord dysfunction. Normally, people open their vocal cords when they breathe and close them for speaking, singing, swallowing, or lifting heavy items. During this dysfunction, a person closes their vocal cords when they mean to open them to breathe.

Ms. Fox underwent a flexible nasopharyngoscopy. An ENT surgeon performed the diagnostic procedure, inserting a thin, flexible instrument with a camera into Jayne’s nose and throat through her nostrils. The procedure revealed a significant gap (glottal gap) between her closed vocal cords. In addition, her vocal folds were bowing, preventing normal cord closure.

The ENT surgeon also noted that Jayne’s cough could not clear her significant secretions that were entering her airway. The doctor said that her glottal gap was likely the result of the large double lumen tube (DLT) trauma that had caused significant secretions and aspiration. An anesthesiologist places a DLT into a patient’s trachea when administering anesthesia for some surgeries.

Jayne Fox continued to deteriorate after her surgeries, despite multiple medical consultations for neurology, infectious disease, speech therapy and occupational therapy. On September 22, 2014 Ms. Fox was transferred to hospice care, a little over a month before she first went to Emory University Hospital for help. Jayne Fox died three days later.

Allegations and Testimony

Marshall Fox, Jayne’s son, sued Emory Healthcare Inc. and The Emory Clinic Inc. as an individual and as administrator of his mother’s estate, claiming that his mother died from aspiration due to a traumatic vocal cord injury she suffered during the August 13, 2014 surgery.

Fox alleged that the vocal cord injury was the result of negligence and that his mother’s medical professionals were responsible for her death. The suit also attempted to hold the defendants liable for the negligence of the hospital’s employees.

Anesthesiologist Mistakes

The estate asserted that before the VATS procedure Dr. Joseph Edward, an anesthesiologist at the hospital, made the wrong decision to intubate Jayne Fox using a double lumen tube. Edwards did not examine Jayne before he selected this method. The anesthesiologist’s assistant, Dr. James Morrison, could not get the DLT into the diminutive patient’s body after attempting to do so. The assistant then chose a, a single lumen tube with a bronchial blocker.

The estate contended that Dr. Edwards choice of the double lumen tube was too large for Jayne who was only five feet tall and weighed 97 pounds. The attempts to insert the too large tube, per the estate, resulted in a traumatic vocal cord injury that the anesthesiologist failed to recognize.

Ear, Nose, and Throat Doctor Shortcomings

The estate also claimed that Dr. Kim erred when he failed to communicate his findings to Jayne’s doctor, Roy Rajan. Plaintiff also faulted the attending ENT doctor for failing to issue orders to address the Kim’s concerning findings and abnormal nasopharyngoscopy. Fox’s counsel added that the ENT physician did not follow up on Jayne’s condition after the Aug. 20, 2014, visit, nor did he complete his notes on the visit until over a month later when he found out Ms. Fox had died. .

Hospital Staff Inaction

The lawsuit also sought to hold Emory’s medical staff accountable for violating the accepted standard of care and skill to timely recognize Jayne Fox’s vocal cord injury. The estate further asserted a number of staff failing. The first assertion was a failure to inform the attending physicians of Fox’s continued aspiration. Next plaintiff point to staff’s failure to recognize the lack of appropriate otolaryngology attention to Fox given her dire situation and the failure of not attending to Fox. Counsel claimed the hospital’s employees ignored Fox’s physical and medical needs. All of this, stated the plaintiff, amounted to the hospital’s staff proximately causing Jayne Fox’s injury and death.

In contrast, defense counsel vigorously denied that there was any departure from the standard of care in Fox’s treatment.

Damages Sought

Jayne Fox’s estate sought damages for her pain and suffering prior to her death as well as compensation for her full life. Marshall Fox also requested funeral expenses.

The estate additionally sought damages for the pain and suffering and loss of society of Mr. Fox, Jayne’s son.

The estate maintained that Jayne could have lived at least another 10.82 years. This meant Ms. Fox had a 50% chance of living beyond the 10.82 years.

The defense stated that the jury should not award any damages because there was no departure from the standard of care and treatment in Jayne’s care.


The jury exonerated all of the doctors, except Dr. Roy Rajan. Rajan committed malpractice, according to the jury. The jurors set the estate’s damages against Emory at $2.35 million.

Key Takeaways

The jury finding that Fox’s attending physician, Dr. Rajan, was the only person responsible for her death was a bit surprising. Despite numerous doctors’ and medical staff awareness of her dire condition, this jury elected to say that the buck stopped with the attending doctor. This verdict sends a strong signal to attending physicians who do not properly monitor their patients’ post-surgery and fail to recognize and act on life-threatening surgery complications.

About the author

Carolyn Casey, J.D.

Carolyn Casey, J.D.

Carolyn Casey is a seasoned professional with extensive experience in legal tech, e-discovery, and legal content creation. As Principal of WritMarketing, she combines her decade of Big Law experience with two decades in software leadership to provide strategic consulting in product strategy, content, and messaging for legal tech clients. Previously, Carolyn served as Legal Content Writer for Expert Institute, Sr. Director of Industry Relations at AccessData, and Director of Product Marketing at Zapproved, focusing on industry trends in forensic investigations, compliance, privacy, and e-discovery. Her career also includes roles at Iron Mountain as Head of Legal Product Management and Sr. Product Marketing Manager, where she led product and marketing strategies for legal services, and at Fios Inc as Sr. Marketing Manager, specializing in eDiscovery solutions.

Her early legal expertise was honed at Brobeck, Phleger & Harrison, where she developed legal strategies for mergers, acquisitions, and international finance matters. Carolyn's education includes a J.D. from American University Washington College of Law, where she was a Senior Editor for the International Law Journal and participated in a pioneering China Summer Law Program. She also holds an AB in Political Science with a minor in art history from Stanford University. Her diverse skill set encompasses research, creative writing, copy editing, and a deep understanding of legal product marketing and international legal trends.

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