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.