Essex Court Case - April/May 2015

The Facts

A 32 year-old married male plaintiff was admitted to Bayonne Medical Center on November 17th, 2009 with abdominal pain and nausea. A CT scan of the abdomen was ordered by the attending physician, which revealed “a significant amount of droplets of extra-luminal air extending into the diaphragm.” The interpreting radiologist’s impression was that these findings were “compatible with acute diverticulitis” and “highly suggestive of a perforation.” The plaintiff was given pain medications, IV antibiotics and fluids, and admitted to the medical surgical floor. Additionally, the insured surgeon, was called in on consultation on November 17th; they discussed the CT scan results with the radiologist and decided to see the plaintiff the following morning. On November 18th, at around 10:20 a.m., the insured examined the plaintiff, diagnosed diverticulitis, and recommended continuing non-operative treatment.

The insured’s decision not to perform surgery was based on the fact that the plaintiff was without fever, his lab values were stable, and his condition seemed to be improving on antibiotics and IV fluids. The insured also recommended a repeat CT scan in three days. However, on November 20th, the plaintiff's abdominal pain worsened, he was vomiting, and his abdomen was distended. At around 11 a.m., a repeat CT scan was performed and showed “extensive inflammation consistent with peritonitis” and “increased intra-peritoneal free air.” The insured took the plaintiff to the OR at around 2:50 p.m. and found multiple areas of yellowish fluid near the small bowel, including the sigmoid colon, which was consistent with perforated diverticulitis. The insured explored the entire small bowel and could not identify the site of the perforation to remove; alternatively, the insured performed a colostomy.

The surgery concluded at around 7:40 p.m. After being extubated by the co-defendant, and while being transferred to the surgical recovery room, the plaintiff went into cardiac arrest at around 7:54 p.m.; CPR was administered without success and the plaintiff died.

Originally, the plaintiff did not sue the anesthesiologists. Mr. Brennan began a third party action against these doctors alleging that the insured surgeon did not cause the plaintiff’s death but rather his death was caused by pre-mature extubation. The plaintiff’s counsel then awarded the complaint and directly sued the anesthesiologist.

Allegation of Deviation against the Insured

Plaintiff alleged that the insured’s decision not to perform immediate surgery for perforated diverticulitis led to sepsis, cardiac arrest, and premature death of the 32 year-old male plaintiff.

Trial Outcome

The anesthesiologist who was relieved mid-surgery was dismissed during trial, but the plaintiff proceeded to verdict against both the insured and the anesthesiologist who extubated the plaintiff following the surgery. The jury returned a unanimous no cause verdict in favor of the insured finding that he did not deviate from the standard of care. The jury unanimously found that the anesthesiologist deviated and awarded the plaintiff $4 million in damages.