DEFENDANTS' VERDICT - MEDICAL MALPRACTICE - RADIOLOGY - ALLEGED FAILURE TO TIMELY DIAGNOSE GASTRIC LEAK FOLLOWING ABDOMINAL SURGERY - WRONGFUL DEATH FROM SEPTIC SHOCK AND ORGAN FAILURE.

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COMMENTARY

Following the verdict, the plaintiff moved for new trial arguing that

a new trial is warranted due to the defendant’s medical expert tes-

tifying to things that were not previously disclosed or reflected in

his compulsory examination initial report or his addendums,

namely that he saw no evidence of a surgery having been per-

formed by the plaintiff’s surgeon. The plaintiff maintained that it

was error for the trial court to allow the defendant’s expert to tes-

tify to opinions not contained in his CME report or addendums, cit-

ing Fla. R. Civ. P. 1.360(b) that requires “the party requesting the

examination to be made shall deliver to the other party a copy of a

detailed written report of the examiner setting out the examiner’s

findings, including results of all tests made, diagnosis, and conclu-

sions, with similar reports of all earlier examinations of the same

condition.” When the defendant’s expert was nearly done testify-

ing, plaintiff’s counsel asked his final question, “Dr. is it fair to say

that 2 board certified doctors could have a reasonable difference of

opinion regarding the diagnosis, prognosis and treatment of a pa-

tient.” Rather than answer “yes” as he did in the prior proceedings,

the witness testified that there was no evidence of a surgery having

been performed, and plaintiff’s counsel could not have been pre-

pared to rebut or effectively cross-examine the witness on his new

theory. The plaintiff argued that this, coupled with the fact that

there were affirmative defenses of fraud, very well may have

decisively and unfavorably tipped the scales in favor of the

defendant and deprived the plaintiff of a fair trial.

DEFENDANTS’ VERDICT – MEDICAL MALPRACTICE – RADIOLOGY – ALLEGED FAILURE

TO TIMELY DIAGNOSE GASTRIC LEAK FOLLOWING ABDOMINAL SURGERY –

WRONGFUL DEATH FROM SEPTIC SHOCK AND ORGAN FAILURE.

Lee County, FL

The estate of the 56-year-old decedent brought

this medical malpractice/wrongful death action

against a surgeon and a radiologist, along with

their respective practice groups. The plaintiff

claimed that the defendants negligently failed to

diagnose and treat a gastric leak following

abdominal surgery thereby resulting in the

decedent’s death. The defendants maintained that

the decedent’s treatment met the standard of care

in all respects and that she developed a delayed

gastric leak after her hospital discharge, which is

a known complication of the surgery performed.

Evidence showed that, on December 21, 2018, the de-

cedent presented to a non-party hospital for laparo-

scopic hiatal hernia repair with a bariatric (weight loss)

component and intraoperative endoscopy due to a di-

agnosis of hiatal hernia, GERD and esophageal

dysmotility. The surgery was performed by another sur-

geon in the defendant surgical group, and the operat-

ing surgeon was not a defendant in the case.

The defendant surgeon was covering for the operating

surgeon on the days following the surgery. After the sur-

gery, the defendant surgeon ordered a routine post-op-

erative upper GI study with contrast to rule out

obstruction and/or leak. The upper GI was read by the

defendant radiologist who saw no definitive evidence of

a gastric leak… but indicated that he could not rule one

out.

The defendant surgeon discharged the decedent on

December 23, 2018. However, on December 25, 2018,

the decedent’s husband brought her back to the hospi-

tal where she was found to be in septic shock. The de-

fendant surgeon performed an exploratory surgery on

December 25, 2018. He diagnosed a gastric leak and

performed partial gastrectomy, removal of mesh and

washout. The decedent did not recover and died on

December 29, 2018. The cause of death was listed as

septic shock with multi-organ failure.

The decedent was employed as a director of rehabilita-

tion at a skilled nursing facility. Her husband was de-

pendent upon her for economic support. The plaintiff’s

economist estimated the plaintiff’s economic losses to

be in the range of $760,000 to $826,000.

The plaintiff’s expert radiologist opined that the defen-

dant radiologist missed clear leakage of contrast on the

decedent’s December 22, 2018 upper GI. Alternatively,

this expert argued that, because the defendant radiolo-

gist was unsure regarding a gastric leak, a CT-scan

should have been recommended. The plaintiff’s surgical

expert testified that the defendant surgeon should have

recognized clinical signs and symptoms consistent with

a gastric leak and ordered a CT-scan. If a CT-scan had

been ordered, the plaintiff contended that it more likely

than not, would have definitively showed a leak which

could have been surgically repaired. According to the

plaintiff, failing to diagnose a leak and discharging the

decedent from the hospital, more likely than not,

resulted in her death.

The defendant’s radiology expert testified that the de-

fendant radiologist’s interpretation of the December 22,

2018 upper GI met the standard of care and there was

no leakage of contrast shown on any of the upper GI

images. The defense also called a colon/rectal surgeon

who specializes in metabolic/bariatric surgery. This expert

also opined that the upper GI did not show a leak and

that a CT-scan was not indicated prior to the decedent’s

hospital discharge. He opined that the decedent devel-

oped a delayed gastric leak after discharge which is a

known complication of the surgery performed.

The jury found no negligence on the part of any defen-

dant which was a legal cause of the decedent’s death.

REFERENCE

Plaintiff’s economic expert: Kris S. Kirby from Tampa,

FL. Plaintiff’s radiology expert: H. Paul Hatten, Jr.,

M.D. from Vero Beach, FL. Plaintiff’s surgical expert:

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