On December 10, 2009, a Cook County jury found in favor of the firm's client, a bariatric surgeon represented by DBMS.
Plaintiff's decedent, a 45-year old employed single mother, underwent Roux-En-Y gastric bypass surgery performed by the defendant on December 8, 2004. On post-operative day 2, the patient developed fever and tachycardia. The defendant ordered diagnostic studies which did not reveal an anastomotic leak. The defendant diagnosed and treated a urinary tract infection, the patient improved and was discharged on December 12, 2004.
On December 16, 2004, the patient was transported by ambulance to the emergency room at another hospital with complaints of bleeding from the incision and abdominal pain. The emergency room physician examining the patient noted some clear serosanguinous drainage from the wound but no signs of infection. The patient was discharged with instructions to follow up with her surgeon the next day.
On December 17, 2004, the patient appeared at the surgeon's clinic without an appointment. Clinic staff took vital signs which revealed an elevated heart rate and lower oxygen saturation and documented the patient's complaint of abdominal pain, rated 7 on a scale of 1-10. The surgeon was not in the office and did not see the patient that day but did see her for a scheduled post-operative visit at the clinic on December 20, 2004.
On December 20, the patient continued to have mild tachycardia and lower oxygen saturation and the surgeon noted clear drainage from the wound, consistent with a seroma. A seroma is not an infection but is a generally benign fluid drainage that generally resolves on its own. Seromas occur in 20-40% of patients after gastric bypass surgery. In addition, the surgeon noted edema (swelling) in the lower extremities and prescribed medication to treat fluid overload. No pain complaints were noted in the record.
The patient appeared for a scheduled follow-up visit on December 29, 2004, at which time the surgeon noted she had lost 33 pounds, the seroma drainage had decreased remarkably, there was no indication of infection, she was tolerating her pureed diet and she was doing "extremely well." No vital signs were documented for this visit. The surgeon requested that the patient return for follow-up in 3 months.
On January 1, 2005, the patient complained of shortness of breath, paramedics were summoned and the patient suffered a cardiorespiratory arrest while en route to the hospital. Resuscitation efforts were unsuccessful and she was pronounced dead in the hospital emergency room that evening. An autopsy was performed at the family's request 5 days after the death. The cause of death per the autopsy report was pulmonary embolus and "empyematous peritonitis."
The decedent's friends and family members testified that from the time of discharge from the hospital after surgery until the time of death, the decedent became more and more ill, was unable to keep down any food without vomiting, unable to ambulate, increasingly short of breath and complaining of severe and worsening abdominal pain and having green-yellow pus discharge from the surgery incision.
The plaintiff's controlled bariatric surgery expert opined that the peripheral edema, tachycardia, lower oxygen saturation and abdominal pain should have led the surgeon to suspect DVT and abdominal infection. The plaintiff's expert opined that the decedent had an intra-abdominal infection and bilateral deep venous thrombosis (DVT) at the time of the two post-operative visits to the surgeon. The plaintiff's expert testified that the patient's immobility due to ongoing infection contributed to cause the DVT which eventually led to the pulmonary embolus and death.
Plaintiff alleged that the surgeon negligently failed to perform and appropriate history and physical exam, including vital signs, at the two post-operative visits, failed to order venous doppler studies to diagnose and treat DVT and failed to order an abdominal CT scan to diagnose and treat intra-abdominal infection. It was undisputed that infection, DVT and pulmonary emboli are known complications of gastric bypass surgery which can happen absent negligence.
It was undisputed that the patient died from pulmonary emboli and that the pulmonary emboli (PE) most likely emanated from blood clot in the legs (DVT) but the defense denied that there was reason to suspect DVT or PE and denied that there was any indication to order a CT scan or venous doppler studies. The plaintiff's expert admitted on cross-exam that the defendant's entries in the medical records did not suggest DVT or intra-abdominal infection on December 20 or December 29 and that based on the records, there was no indication to order a CT scan or venous doppler studies on those dates.
The plaintiff's expert further admitted on cross-exam that there was "a complete disconnect" between the medical records and the family's testimony.
The defense also argued that, despite the autopsy findings, there was no intra-abdominal infection. The defense contended that what appeared as "pus" to the pathologist at the time of the autopsy was, in fact, benign seroma fluid that had gelled and discolored because the patient had been dead for 5 days and was already embalmed at the time the autopsy was performed. The defense argued that the sole proximate cause of the death was a pulmonary embolism, an unpredictable and unpreventable known complication of surgery.
Plaintiff asked the jury to award in excess of $3.6 million. After deliberating for less than one hour, inclusive of lunch, the jury returned a verdict for the defense.