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, was passed into Gary’s esophagus. It was 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 surgery completion.
Following the surgery, Gary experienced pain in his throat and upper abdomen. Swallowing water was painful and he was unable to 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. It was discovered that he had a 2 centimeter 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 73 days. He underwent six surgeries, numerous procedures to place and remove chest tubes and drains, and 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 become able to be independent in his daily activities.
Expert Witnesses Agreed Doctor was Negligent
Experts testified on behalf of the plaintiff that the difficulty passing the bougie was an indicator 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. The experts testified that the standard of care required Dr. Kellar to perform a thorough inspection of the esophagus for any signs of injury, as well as perform intraoperative 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 for observation.
The defendant’s expert witness, 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. He 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. They testified 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 inspected the esophagus after the attempt to pass the bougie. He said he had not taken any specific steps, aside from the prior visual inspection, to rule out injury to the esophagus. Dr. Kellar stated he could not rule out that the esophagus had been perforated during his surgery.
The jury deliberated for nine hours. After eight 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 the 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 the plaintiff’s counsel.
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