Our Record of Success

DBMS Successfully Defends Gastroenterologist on Appeal

Karen Kies DeGrand and Laura Coffey Ieremia secured an appellate opinion affirming judgment in favor of defendants in a medical malpractice case. Plaintiff sued the physician, a gastroenterologist, and his clinic on the theory that the physician injured plaintiff’s spleen by allegedly exerting excessive force during a colonoscopy. Plaintiff also alleged the gastroenterologist failed to warn plaintiff against taking aspirin and other blood thinners before and after the procedure and failed to warn her of the risk of a spleen injury. Defendants rebutted the facts underpinning plaintiff’s medication theories with the testimony of clinic personnel. Medical expert witnesses for the defense testified that plaintiff and her husband received appropriate instructions at discharge not to take specific medications for two weeks following the procedure. Defendants also presented testimony that the physician properly informed plaintiff of the risks associated with a colonoscopy and that the standard of care did not call for specific mention of a spleen injury, an extremely rare occurrence. The physician also established that he did not apply excessive force during the procedure and provided appropriate discharge instructions.

On appeal, plaintiff argued that the trial court erred by denying a pretrial motion to exclude evidence that her conduct caused or contributed to her alleged injury. Plaintiff argued that her own conduct could not be cited as the sole cause of injury. Plaintiff also claimed error in defendants’ closing argument. According to plaintiff, a judicial admission precluded the defense from challenging plaintiff’s theory that the physician had not warned plaintiff before the procedure of the risk of splenic injury.

Among other defense arguments asserted on appeal, DBMS attorneys challenged plaintiff’s arguments based on her failure to preserve them; plaintiff’s waiver occurred during the trial, in her post-trial motion and in her appellate brief. The defense also argued the jury heard ample testimony defending the gastroenterologist’s care and treatment of the patient, unaffected by plaintiff’s claims concerning causation testimony.

Affirming the judgment for the gastroenterologist and the medical group, the appellate court accepted defendants’ position that plaintiff’s arguments were procedurally deficient and that her claims lacked merit. The appellate court observed plaintiff complained about evidence that she herself introduced; having elicited testimony on the topics of her pretrial motion and the subject of defense counsel’s closing argument remarks, plaintiff forfeited her challenge to the trial court’s rulings on those issues. On the merits, the appellate court rejected plaintiff’s claim that defendants inappropriately blamed plaintiff for her injury. The appellate court also agreed with the defense argument that no prejudicial error occurred where the trial court refused to instruct the jury on a sole proximate cause defense and accepted a curative instruction proposed by plaintiff. In addition, the appellate court observed that the comments made in closing that plaintiff challenged constituted only a small part of defendants’ argument on plaintiff’s informed consent claim and provided no reason to reverse the judgment.