Absence of “Res Ipsa Loquitur” theory Prompts New Trial in Surgery Suit

Alma Willis underwent a 12-hour surgery with Dr. Jeffery Flagg on May 21, 2008 to treat her back issues but ended up having temporary swelling and permanent nerve damage in both arms. It was not clear how the arm injuries occurred, and Willis couldn’t testify as to what happened since she was under anesthesia during the operation…law360, Court Axes Defense Verdict In Suit Over Surgery, Cara Salvatore, 2020

However, Willis’ trial judge banned any evidence concerning a “res ipsa loquitur” theory — in Latin, “the thing itself speaks” — which can allow a jury to find negligence where the precise source of an injury isn’t known.

The appeals court ruled that since the experts here could not conclusively establish the cause of Willis’s injury, she could rely on circumstantial evidence to establish her claim. It also said in its ruling that the trial court was wrong in excluding Willis’s experts from testifying that the injury to Willis’s median nerve would not have occurred in the absence of negligence.”

The appeals court ordered a new trial so that this evidence could be presented.

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Kayur V. Patel, MD, MRO, FACP, FACPE, FACHE, FACEP
KayurVPatel@ExpertWitness.MD

$2.5M Med Mal Award Partly Restored

In 2015, Elza Garzon had sued Dr. Steven Batash of negligence while performing the diagnostic procedure to examine her upper digestive tract. She had alleged that Dr. Batash inserted the scope and took a biopsy sample too quickly, breaking a sac in the wall of her duodenum…law360, NY Court Partly Reverses Slash Of $2.5M Med Mal Award, Y. Peter Kang, 2020

After experiencing pain and nausea due to the procedure, she was later diagnosed with an intestinal perforation in the duodenum and a surgery performed on her to prevent the contents of the intestine from spilling through the opening into the rest of the body and causing sepsis, a potentially deadly infection.

In March 2017, the Queens County jury awarded Elza Garzon a total of $2.5 million in damages. However, Queens County Judge Joseph J. Esposito’s in a post-trial decision had reduced a $1 million award for future pain and suffering to $100,000.

The New York appeals court panel said that although Judge Esposito did not err by reducing a $1.5 million award for past pain and suffering to $550,000, the judge’s decision to drastically cut the future pain and suffering award did not result in reasonable compensation given the nature and extent of Garzon’s injuries.

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Kayur V. Patel, MD, MRO, FACP, FACPE, FACHE, FACEP
KayurVPatel@ExpertWitness.MD

Doctor-Patient Affair Revives Med Mal Suit

A Washington state appeals court has given Monique Messenger another chance to seek damages from late Dr. Bryan Whitemarsh’s estate who she had an affair with, upon finding that the relationship between the two may have led to medical malpractice…law360, Wash. Court Reboots Med Mal Suit Over Doctor-Patient Affair, Jack Queen, 2020

Dr. Bryan Whitemarsh died by suicide after Monique Messenger, who was being treated by the doctor for mental health issues, broke off an affair with him. The court held that the case law holding mental health providers liable for sexual relationships with patients applies to primary care doctors also when they provide mental health treatment, as was the case here.

The crucial analysis of the court took into account the phenomenon of “transference” under which the mental health patients develop feelings and emotions for their therapists. According to the court panel, when undergoing mental health treatment, if such transference occurs, or a mishandling of such transference takes place, causing injuries, then the doctor can be held liable. The court also referenced medical literatures that hold that sexual relationships are clearly harmful to patients.

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Kayur V. Patel, MD, MRO, FACP, FACPE, FACHE, FACEP
KayurVPatel@ExpertWitness.MD

“Be A Hero” Call Prompts a New Trial

A new trial was ordered by the Iowa appeals court between patient Natalie Kipp and surgeon Douglas Stanford over an abdominal surgery on Aug. 27, 2013. Stanford’s lawyers claimed in court that statements made by Kipp’s lawyers in closing arguments asking the jurors to “be the hero” for someone who didn’t have the power herself were inappropriate and inflammatory…law360, Med Mal Atty’s ‘Be A Hero’ Closings Prompt New Trial For Doc, Cara Salvatore, 2020

One of those statements, according to the appeals court opinion, was Kipp’s lawyer’s declaration, “You’re given the power to be a hero for someone who doesn’t have the power herself.“.

According to the appeals court, the statement inappropriately implied that the jurors would be heroes only if they opined in favor of Kipp. However, the court expressed no opinion whether it is proper to suggest jurors are heroes by performing their civic duties in general. The court also said that the lower court didn’t abuse its discretion properly in pointing out the impropriety.

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Kayur V. Patel, MD, MRO, FACP, FACPE, FACHE, FACEP
KayurVPatel@ExpertWitness.MD

Texas Court Confirms Doctor’s Win in Spine Surgery Suit

Charles Collins underwent neck surgery performed by Dr. Shanker Sundrani after which he started showing symptoms of spine compression, resulting in quadriparesis, or weakness in all four limbs. Subsequently, Dr. Cesar Vivanco was consulted to treat him and Collins alleged that Dr. Vivanco failed to confer with Sundrani to determine the exact cause of the patient’s condition…law360, Texas Court OKs Doc’s Trial Win In Patient’s Spine Injury Suit, Y. Peter Kang, 2020

Instead he tasked a nurse to call Sundrani since Dr. Sundrani was not picking up his phone. This, according to him, constituted a breach of standard of care because he had a nondelegable duty to speak directly with Sundrani about the patient’s condition.

An Eighth Court of Appeals panel however, upheld an El Paso County jury’s decision to clear Dr. Cesar Vivanco of any wrongdoing and said that Collins failed to establish the existence of a nondelegable duty in the context of the case. According to the court, it found no statute or case law that imposes a nondelegable duty upon an attending physician to discuss a patient’s condition by having a direct physician-to-physician contact.

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Kayur V. Patel, MD, MRO, FACP, FACPE, FACHE, FACEP
KayurVPatel@ExpertWitness.MD

$1.1M Med Mal Verdict In Sinus Surgery Suit Reversed

In 2007, Dr. Katherine Joy Shen performed a sinus surgery on Rena Berger after which she permanently lost her sense of smell and taste, and suffered other injuries too…law360, NY Court Tosses $1.1M Med Mal Verdict In Sinus Surgery Suit, Y. Peter Kang 2020

The Westchester County jury cleared Dr. Shen of negligence in surgery but came to the conclusion that she breached the standard of care by failing to inform Rena that a “dural patch” was placed inside Berger’s sinus cavity to reinforce a weakened bone. According to the jury, Rena’s injuries were caused due to this and awarded $1.13 million in damages.

The New York appellate court however, opined that there was no evidence submitted at trial that this negligence of not informing the patient of the patch “could possibly lead rational persons to the conclusion” that Shen caused Berger’s injuries. Similarly, there was no evidence presented at the trial that the patch was disturbed after the surgery.

As a result, it vacated the $1.1 million verdict in the suit, citing lack of relevant evidence.

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Kayur V. Patel, MD, MRO, FACP, FACPE, FACHE, FACEP
KayurVPatel@ExpertWitness.MD