Lawyers at DBMS successfully litigate a wide variety of civil cases and argue appeals in some of the most challenging jurisdictions in the country.

Professional Liability

McCullough v. Defendant Bariatric Surgeon


Defendant Bariatric Surgeon


Directed Verdict in Favor of the Defendant after a Bench Trial


On April 13, 2012, Judge James M. Varga directed a verdict in favor of DBMS’s client, a bariatric surgeon and against, the plaintiff, the administrator of the estate of the deceased. Plaintiff’s decedent was a thirty-one year old female who weighed 440 pounds.

On May 28, 2003, the defendant bariatric surgeon performed a Roux-En-Y gastric bypass procedure for weight loss at the University of Illinois Medical Center. The defendant tested the anastomoses at the conclusion of the surgery and they were noted to be airtight and water-tight. The patient tolerated the procedure well with no complications noted at that time. The patient remained in the hospital until she was discharged on May 31, 2003, with instructions to follow-up in one week. The discharge summary indicated that the patient’s vital signs were stable and that she had minimal pain.

Once the patient arrived at home she began to complain of pain in her back and shortness of breath. The symptoms persisted overnight and the following morning but she did not contact a physician. The day after her discharge, her father brought her to the emergency room, where she complained of shortness of breath since the previous evening. She was cold and clammy with a low blood pressure and high heart rate. She went into cardiac arrest as the emergency room physician performed his examination. She could not be resuscitated and died on June 1, 2003.

An autopsy report dated June 15, 2003, states that the suture lines of the gastric bypass were intact grossly and without signs of inflammation. Two liters of grey-green ascites fluid was found in the abdominal cavity. The medical examiner noted the cause of death as peritonitis due to gastric bypass surgery. The medical examiner testified that he believed the peritonitis was caused by a leak, notwithstanding that he was unable to find any gross evidence of a leak.

The plaintiff alleged that the defendant deviated from the standard of care by failing to perform post-operative testing, including a CBC, upper GI, as well as failing to examine the patient prior to discharge and failing to ensure adequate oral intake prior to discharge.

The defense was prepared to argue that the standard of care did not require a CBC, upper GI or an examination of the patient by a physician prior to discharge and that there was adequate oral intake. Further, the defense was prepared to argue that none of the alleged deviations from the standard of care caused the patient’s death.

The court granted directed verdict in favor of the defendant at the close of plaintiff’s case due to plaintiff’s failure to present any testimony on the issue of causation.