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November 23, 2010
I took a jury verdict today in Nassau County Supreme Court.
The case involved a colonoscopy performed on November 18, 2005. My client needed the procedure because he had a family history of colon cancer, a personal history of having a precancerous polyp removed from his colon, and a personal history of inflammatory bowel disease which increases his risk for colon cancer.
It was clearly documented in the record and the procedure room log that the procedure was done early in the morning and complete just a few minutes after 8am. Normal vital signs were recorded in the recovery room at 8:15, 8:30 and 8:45. The recovery room nurse checked off that he met all of the criteria for discharge. There were no recorded complaints.
He went home at 9:10am and around 3:30 he called the doctor who did the procedure (who was home at the time and returned a message to his answering service) and complained that he felt weak, washed out and felt as if he was having a stroke.
At 8:40 pm, an ambulance was called by a 9-1-1 dispatcher, and he arrived at the hospital nearest his home by 9pm. A CT scan showed large amounts of blood in his abdomen. He was taken to the operating room shortly after 11 pm. His spleen was completely ruptured and out of its capsule and there were over two liters of clotted blood. His blood pressure was 60/0!
The defense argued that there was no unusual trauma during the procedure. It was their position that due to the fact that the patient had a splenic hematoma following a colonoscopy in 1999 by a different physician, “there must be something about” him that made him more susceptible to this rare complication. They also suggested that it may have happened due to adhesions (scarring) which would decrease the mobility of the spleen and the bowel. They claimed that the adhesions may have formed due to inflammation from Crohn’s disease which crosses the bowel wall. They claimed that long term steroid usage (for an unrelated medical condition) may have caused a dysfunction of his platelets that made him bruise easily.
The medical records in evidence contained a report from a hematologist who saw him in 2001 to assess why he had the 1999 splenic hematoma. The impression was a “probable” qualitative platelet disorder, meaning he had a problem clotting. The defense argued that he therefore had a propensity to bruise or bleed easily and that this might explain the ruptures of his spleen.
There was not one single other medical record or note suggesting a bleeding problem or bruising. The patient had undergone 9 colonoscopies, a flexible sigmoidoscopy and numerous upper endoscopies with biopsies on almost every one of those occasions and multiple biopsies on many of them, without ever having a bleeding complication.
The defendant himself had written a report to the primary care physician after his first evaluation of the patient in which he stated that the 1999 splenic hematoma had been due to “probable colonoscopic trauma”.
A report by his current gastroenterologist indicated that the patient had asked him what caused the 1999 splenic hematoma and he told him it was most likely an anatomic abnormality (meaning adhesions).
A surgeon who evaluated the patient for the hematoma reported in July 2000 that it had resolved to the point where it was a benign cyst which would appear on future CT scans, but would have no clinical significance.
The defendant testified at his examination before trial that before he performed his first colonoscopy in 2002 the hematoma had “completely resolved”.
The jury was also aware that the defendant had performed colonoscopy on this patient on two prior occasions; December 2002 and January 2005. The goal of colonoscopy they were told, is to visualize the entire colon from the anus to the cecum and if possible to visualize the terminal ileum.
The defendant had failed to pass the colonoscope beyond the hepatic flexure during either of his first two procedures. In spite of this, his November report indicated that he saw polyps in the ascending colon “which were unchanged from the previous colonoscopy”. At trial, he claimed the report was erroneous even though he had testified at his examination before trial that there were no corrections or additions to be made to that report.
Even though his report described visualizing the ascending colon, he did not take photographs of the cecum or any of the relevant landmarks documenting that he had performed a successful colonoscopy (reached the cecum).
In the end, the jury believed that there was no evidence that any of the alternative causes of the injury to the spleen were supported by the evidence.
The jury found that the defendant doctor performed the colonoscopy in a traumatic manner that departed from accepted standards of care which caused the otherwise unnecessary surgery to remove the spleen, the near death experience and an increased susceptibility to infection due to loss of the spleen and two incisional hernias. The hernias have not been operated upon because he is diabetic, on long term prednisone which suppresses his immune system and has no spleen. He therefore wears an abdominal binder to prevent the hernias from strangulating which could lead to a surgical emergency and even death.
The defendants also argued that the damages were minimal due to the fact that the plaintiff was already debilitated by as many as 20 pre-existing conditions.
The award of damages included $250,000.00 for pain and suffering from November 18, 2005 until the date of the verdict, and $250,000.00 for pain and suffering from the date of the verdict for the rest of the plaintiff’s life, which the jury estimated will be another 7 years; 7 years less than the statistical average.
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