TRIAL NEWS
Arbitration Award For Defendant Surgeon In Norfolk
December 2005
Dan Filetti and
Matt Curtis
of our Norfolk office won a finding of no negligence for their defendant surgeon following
a 3 day arbitration in Norfolk, Virginia.
The plaintiff was diagnosed with gastric esophageal reflux disease (GERD) and was scheduled for a Laparoscopic Nissen Fundoplication procedure. Plaintiff alleged that the defendant negligently caused her esophagus to be perforated during the procedure which required an emergency thoracotomy. She alleged that she suffered a nerve injury during the performance of the thoracotomy and that she has been left with significant complications including limited use of her dominant left hand, severe headaches, blurred vision, and continuing severe pain.
The injury occurred near the end of the procedure. One of the last steps requires that a bougie be passed through the patient's esophagus and into the stomach to assist the surgeon in stitching the stomach. Plaintiff contended through her experts that the bougie, a hard, rubber, solid, tapered tube selected by the defendant was too large and caused the esophagus to rupture (the purpose of the bougie is to help ensure that the stomach is not wrapped too tightly around the esophagus - if the wrap is too tight, then the patient can experience difficulty swallowing). The defense successfully argued that the bougie which was utilized was appropriately sized, that the uncontradicted evidence showed that the perforation was caused by the tip of the bougie not a rupture of the esophagus due to an oversized bougie, and that the communication between the two physicians during the procedure was appropriate under the circumstances. Additionally, defense experts pointed out that ability to prevent the injury was constrained by the physical inability to instantly communicate with the anesthesiologist in order to stop the passage of the bougie. Finally, plaintiff's expert witnesses conceded that such perforations can and do occur in the absence of any negligence and, therefore, the existence of an injury did not establish negligence.
Newport News Circuit Court,
At Law No. CL02-35651V-05