Virginia Lawyers Weekly//January 25, 2016
Virginia Lawyers Weekly//January 25, 2016//
This medical malpractice case involved the percutaneous placement of a device to close a hole in the atrial septum of the plaintiff’s heart. The device slipped out of position during the placement procedure, eventually leading to significant neurologic injury. At trial, plaintiff alleged multiple theories of negligence that challenged the defendant physician’s measurement of the hole, placement and deployment of the device, and efforts to retrieve the device after it moved out of the septum and into the left atrium. Related claims against other co-defendants were resolved and dismissed before trial and the case went to trial against the interventional cardiologist only.
The plaintiff was a 48-year-old cabinet finisher. He previously underwent triple bypass surgery and had a complex medical history including Type II diabetes, COPD, hypertension and high cholesterol. However, he maintained an active lifestyle without significant limitations prior to the procedure, and he was employed full-time.
During routine follow-up after the bypass surgery, plaintiff’s treating cardiologist diagnosed an atrial septal defect – a hole in the atrial septum. The cardiologist referred plaintiff to the defendant physician, an interventional cardiologist with experience treating these defects. The defendant physician planned to close the ASD percutaneously by delivering a closure device known as an atrial septal occluder through a catheter placed in the groin and threaded up into the heart. During the ASD closure procedure, the ASO embolized, migrating out of the atrial septum and into the left atrium. Despite efforts by the defendant physician to retrieve the ASO with snares, it further embolized into the left ventricular outflow tract. The defendant physician consulted with a cardiothoracic surgeon and they decided that the plaintiff would require open-heart surgery to retrieve the occluder and close the defect.
Following open-heart surgery to remove the device, the plaintiff had an embolic stroke, which he attributed to the ASO blocking the left ventricular outflow tract. Among other things, his debilities include difficulty swallowing, profound gait disturbance necessitating a walker or wheelchair, and difficulty with speech. He also had compartment syndrome in his dominant hand, leading to strength deficits and loss of sensation. He is no longer able to work and is separated from his spouse.
The plaintiff’s expert interventional cardiologist offered the opinion at trial that the defendant physician was negligent in three ways: 1) inaccurate measurement of the ASD; 2) improper placement of the ASO; and 3) negligent efforts to retrieve the ASO when it embolized. In essence the plaintiff’s theory was that the device must have been too small, causing it to embolize. The opposing experts offered conflicting theories and analysis of the measurement of the size of the device and the reasons why the device came out of position and could not be readily retrieved.
The defense argued that the defendant physician accurately sized the hole, but variations in the anatomy and heart tissue were such that the device did not stay in place despite accurate sizing and skillful deployment. The defendant physician offered expert testimony by two preeminent interventional cardiologists, both of whom have participated in peer-reviewed studies on percutaneous ASD closure.
Both sides relied on medical literature in support of their positions, and used animation and other medical illustrations to educate the jury. A complicating issue in the case involved the fact that certain echocardiographic imaging studies maintained by the hospital where the procedure was performed were no longer available at the time of the lawsuit.
The trial lasted five days. The court gave the jury an Allen charge after several hours of deliberation. Ultimately, the jury returned a unanimous verdict in favor of the defendant physician after approximately five hours of deliberation.
Type of action: Medical malpractice
Injuries alleged: Complications from cardiac procedure causing stroke leading to significant neurologic injury and profound disability
Tried before: Jury
Date resolved: Nov. 20, 2015
Special damages: Past and future medical expenses, lost wages and a life care plan of more than $2,000,000; pain and suffering damages of more than $5,000,000
Demand: Ad damnum was $2,500,000
Verdict or settlement: Defense verdict
Attorneys for defendant: Sean P. Byrne & John E. Peterson Jr., Glen Allen
Defendant’s experts: John W. M. Moore, M.D., interventional cardiology; Deepak Talreja, M.D., interventional cardiology
Plaintiff’s experts: Abram C. Rabinowitz, M.D., interventional cardiology; Gene O. Neri, M.D., neurology
Insurance carrier: MagMutual Insurance Company