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Juror misconduct was alleged in med-mal trial – Defense Verdict

This medical malpractice trial involved the death of a patient after an arrest and code during an upper endoscopy.  Plaintiff alleged that the defendants were negligent in their pre-procedure planning, performance of the sedation and endoscopy, and that the resuscitative efforts did not meet the standard of care.  After a four-day trial and two hours of deliberation, the Richmond City jury returned a verdict in favor of all defendants.

Plaintiff’s decedent was a relatively healthy 60-year-old woman.  In the weeks before the procedure she complained of nausea, vomiting, feelings of fullness, and abdominal pain.  She was scheduled for an outpatient upper endoscopy with the defendant gastroenterologist.

On the morning of the procedure the patient’s vital signs were normal and she was not complaining of current symptoms.  She had complied with instructions not to eat or drink after midnight.  The anesthesia plan was for IV general anesthesia.  After the patient was sedated and the endoscope introduced, the gastroenterologist observed some retained food in the patient’s stomach.  But he felt he could quickly and safely complete the procedure.

Several minutes into the procedure, the patient retched or coughed, and the gastroenterologist removed the endoscope.  The patient vomited as she was being mask ventilated by the nurse anesthetist who attempted to place a breathing tube. 

A code was called when the patient lost her pulse.  The code team tried repeatedly to establish an airway, but was hampered by the patient’s continued vomiting.  Ultimately, an airway was successfully placed by an EMT. The patient was stabilized and transferred to the hospital, where she was diagnosed with anoxic brain injury and passed away six days later. 

At trial, plaintiff’s experts testified the anesthesia defendants: 1) should have intubated the patient before the procedure, 2) over-sedated the patient, and 3) were negligent in their performance of the resuscitation.  And plaintiff’s experts testified that the defendant gastroenterologist: 1) should have anticipated retained food in the patient’s stomach and 2) should have terminated the procedure immediately upon recognizing retained food. 

Defense experts testified there was no indication the patient required intubation for the procedure or that the patient’s stomach would likely have any significant retained food. 

Defense expert gastroenterologists likewise rebutted plaintiff’s contention that the standard of care required immediate cancellation upon encountering some retained food in the stomach.  Endoscopy patients occasionally have retained fluid or food in the stomach. And it was reasonable to attempt to complete the procedure where the amount of retained food was not excessive and the patient was tolerating the procedure well.  Plaintiff challenged this defense, arguing that the copious amounts of vomit reported by multiple witnesses implied that the gastroenterologist was underestimating the amount of food in the stomach.

In response to plaintiff’s claim that the patient was over-sedated, defense anesthesia experts explained that Propofol, used to sedate the patient, is short-acting and was properly “titrated to effect.”  The anesthesia defendants’ expert nurse anesthetist and anesthesiologist defended the anesthesia team’s resuscitative efforts and described how the patient’s vomiting prevented placement of an airway and repeatedly clogged the endotracheal tube despite diligent and reasonable efforts. 

Several days after the trial, the plaintiff filed a motion challenging the verdict based on an allegation of juror misconduct and outside influence.  An alternate juror alleged that a fellow juror had told her she had consulted with a third-party physician friend during the trial.  The issue was briefed and affidavits were presented.  After an evidentiary hearing with testimony from the jurors, the trial court denied plaintiff’s motion, upheld the verdict, and entered a final order in favor of defendants.



Type of action: Medical malpractice
Injuries alleged: Anoxic brain injury and death
Court: City of Richmond Circuit Court
Tried before: Jury
Name of judge: Hon. Phillip L. Hairston
Date resolved: Dec. 18, 2015
Special damages: Plaintiff claimed $245,000.00 in medical expenses at trial.
Demand: $3,000,000.00
Verdict or settlement: Defense verdict
Attorneys for defendant: Sean P. Byrne and Meredith M. Brebner, Glen Allen; Robert Donnelly and Robyn P. Ayres-Barber, Glen Allen
Plaintiff’s experts: Peter Darwin, M.D. (gastroenterology), John Mercer, M.D. (anesthesiology)
Defendant’s experts: Michael Brown, M.D. (gastroenterology), Phillip Katz, M.D. (gastroenterology), Thomas Pajewski, M.D. (anesthesiology), Kelvin Hornbuckle, M.D. (gastroenterology), Nathaniel Apatov, CRNA
Insurance carrier: The Doctors Company (gastroenterology defendants), The Medical Protective Company (anesthesia defendants)

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