Virginia Lawyers Weekly//November 24, 2014
Virginia Lawyers Weekly//November 24, 2014//
The defendant general surgeon first saw plaintiff, a 48-year-old female, on Sept. 14, 2010. Four days earlier, she has presented to a family practitioner and complained of abdominal pain since Sept. 6, which she rated as 8-9 out of 10 in intensity. The family practitioner diagnosed plaintiff with a urinary tract infection and prescribed oral antibiotics.
On Sept. 13, plaintiff underwent a pelvic ultrasound that had been ordered by the family practitioner, which was normal. She still complained of lower abdominal pain when she presented to the defendant surgeon on Sept. 14. The surgeon was suspicious of ruptured appendicitis, which was confirmed by CT scan later that day. At trial, all expert witnesses agreed that plaintiff’s appendix had ruptured at least four days prior to being seen by the defendant surgeon.
The Sept. 14 CT scan showed an abscess fluid collection measuring approximately 3 x 4 x 4.4 cm with a thin enhancing wall. The radiologist interpreted the CT as being consistent with a ruptured appendix, a conclusion with which the surgeon agreed. The surgeon admitted plaintiff to the hospital and gave her the option of undergoing immediate appendectomy versus conservative antibiotic therapy with later CT-guided drainage of the abscess, to be followed by interval appendectomy. Plaintiff elected the latter.
At trial, plaintiff’s general surgery expert testified that based upon the Sept. 14 CT scan, it was a violation of the standard of care for the defendant surgeon to give plaintiff the option to have the abscess drained, because there was no pathway evident on the CT scan by which drainage could reasonably be anticipated. Plaintiff’s expert testified that small bowel clearly surrounded the abscess and that drainage would never be feasible, a fact that should have been immediately evident to the defendant surgeon. The defendant’s two surgery experts testified that a pathway for anticipated percutaneous drainage could be seen on the CT, but also that it was premature to attempt to make such a determination from the Sept. 14 CT and at any point prior to the time when drainage would actually be attempted and plaintiff could be repositioned in an effort to find a pathway.
Plaintiff’s clinical condition was documented to be improved on both Sept. 15 and Sept. 16. On Sept. 16, plaintiff’s care was turned over to another surgeon, as the defendant surgeon was leaving town. On Sept. 17, it was determined that the patient’s condition warranted an attempt at drainage. With the involvement of an interventional radiologist, CT scans were performed in an effort to obtain a pathway for the percutaneous drain. Nevertheless, bowel surrounded the abscess and it was determined that plaintiff’s ureter could be injured if drainage was attempted. A decision was made to transfer plaintiff to a tertiary care facility where a urologist could be available to participate in plaintiff’s care. Late on Sept. 17, plaintiff was transferred to the tertiary care facility where she would undergo an open appendectomy the next day without complication. Plaintiff would remain hospitalized there until Sept. 27.
At trial, plaintiff’s surgery expert testified that because plaintiff had received oral antibiotics on Sept. 10, it should have been known to the defendant general surgeon on Sept. 14 that conservative antibiotic therapy would not be suitable for a patient who had failed to improve. The defense experts countered that the oral antibiotics were given to address a urinary tract infection, not ruptured appendicitis, which had not been diagnosed at that time. Moreover, oral antibiotics do not function in the same way as the IV antibiotics that were given in the hospital beginning on Sept 14. Defense experts opined that the defendant surgeon was correct to give plaintiff a choice between conservative antibiotic therapy versus immediate appendectomy in this circumstance.
The defendant’s experts testified that the alleged three-day delay in appendectomy did not cause any long-term harm to plaintiff and that the defendant surgeon’s management of her satisfied the standard of care.
After a four-day trial, the jury deliberated for 32 minutes before returning a verdict in favor of the defendant.
Type of action: Medical malpractice
Injuries alleged: Failure to operate immediately and provide definitive treatment for ruptured appendix, which led to lengthier hospital course, abdominal pain, infection and ureteral complications
Court: Buchanan County Circuit Court
Case no.: CL12000501-00
Tried before: Jury
Judge: Patrick R. Johnson
Date resolved: Sept. 11, 2014
Special damages: Not specified. Plaintiff elected not to introduce any itemization of claimed special damages to the jury. She introduced no medical bills and no itemization of the alleged lost earnings claimed in her complaint.
Verdict or settlement: Defense verdict
Attorneys for defendant: Elizabeth Guilbert Perrow and Daniel T. Sarrell, Roanoke
Defendant’s experts: Kent W. Kercher, M.D., general surgeon, Charlotte, North Carolina; Martin T. Evans, M.D., general and vascular surgeon, Richmond
Plaintiff’s experts: Jesse T. Davidson III, M.D., general and vascular surgeon, Roanoke