On February 23, 2015, Plaintiff James "Gary" Cooper underwent
a laparoscopic Nissen Fundoplication by Defendant Dr. Jeffrey Kellar at
North Hills Surgery Center. During the surgery, a dilator, called a bougie,
is passed into Gary's esophagus. It is noted by Dr. Kellar that there
was difficulty passing the bougie. During the surgery a perforation of
Gary's esophagus occurred and was unrecognized. Dr. Kellar did not
perform any intraoperative testing to confirm the integrity of the esophagus.
The surgery was completed in 45 minutes from start to finish. Gary was
discharged from the outpatient surgery center within 2 hours of the surgery
having been completed.
Following the surgery, Gary began having pain in the throat and down to
the upper abdomen. He had pain with swallowing water and was unable to
even swallow his medications.
On February 24, 2015, Gary and his girlfriend placed 10 calls throughout
the day to Dr. Kellar's office reporting that his pain was greater
than expected and he had difficulty swallowing.
Just prior to midnight Gary was taken via helicopter to Washington Regional
Medical Center where it was discovered that he had a 2cm linear tear of
his posterior esophagus that had been leaking into his chest and abdomen.
This resulted in the development of mediastinitis, respiratory failure,
pulmonary empyema, an esophageal fistula, bilateral DVT in the arms, sepsis,
hematomas and a subsequent incisional hernia.
As a result of the perforation, Gary was hospitalized for a total of 73
days. He underwent a total of 6 surgeries, numerous procedures to place
and remove chest tubes and drains, required admission to a long term acute
care facility, and home health nursing. It took Gary approximately 18
months to recover from his injuries and be able to become independent
in his daily activities.
Plaintiff's experts testified that the difficulty passing the bougie
was a red flag that there may have been injury to the esophagus. They
testified that the esophagus was either injured by the bougie or during
Dr. Kellar's dissection. Plaintiff's experts testified that the
standard of care required Dr. Kellar to have performed a thorough inspection
of the esophagus for any signs of injury as well as perform intra-operative
testing such as an EGD with air insufflation of the esophagus while submerged
in saline, a dye test, or an upper GI. Dr. Helling testified that the
standard of care required Dr. Kellar to keep Gary admitted to the hospital
for observation at least 23 hours after surgery. All three surgeon experts
agreed that it is their practice to keep the patient in the hospital overnight
Defendant's expert, Dr. DeLoach, argued that the standard of care did
not require such intraoperative testing, unless the surgeon had a strong
suspicion that injury had occurred. Dr. DeLoach argued that difficulty
passing the bougie was common during these procedures. Dr. DeLoach admitted
that the standard of care required the surgeon to perform a thorough visual
inspection of the esophagus during the surgery. Dr. DeLoach testified
that the perforation was a result of Dr. Kellar's surgery and most
likely occurred during the surgery.
All of the experts agreed that the standard of care required that an esophageal
perforation be identified and repaired during the surgery if it existed
at that time. All of the experts agreed that the subsequent hospitalizations,
treatment and medical bills were the result of the delay in diagnosis
of the perforation, and most likely would have been avoided had the perforation
been repaired during the initial surgery.
During cross-examination- Dr. Kellar admitted that he had not re-inspected
the esophagus after the attempt to pass the bougie. Dr. Kellar admitted
that he had not taken any specific steps, aside from the prior visual
inspection, to rule out injury to the esophagus. Dr. Kellar admitted that
he could not rule out that the esophagus had been perforated during his surgery.
The jury deliberated for 9 hours. After 8 hours of deliberation, a settlement
demand in the amount of $1,000,000 was conveyed to the defense. That demand
was rejected and no offer was made.
The jury voted 9-3 in favor of Plaintiff on the issue of liability and
all 12 jurors agreed to the award of damages. The jury awarded $1,712,038.81,
the exact amount asked for by Plaintiff’s counsel.