Dismissal of Abdominal Perforation Case: Tackling Overbroad Bills of Particulars and Circumstantial Evidence

by | Apr 22, 2020 | Case Results, Medical Malpractice | 0 comments

MCB Senior Partner, Anthony M. Sola, and Associates, Amy E. Korn and Alexander C. Cooper, recently obtained dismissal of all claims against our defendant hospital and our gastroenterologist in a wrongful death case involving a then 79-year old woman, who was diagnosed with inoperable pancreatic cancer. On November 3, 2013, the decedent was admitted to the Hospital with complaints of severe abdominal pain related to her pancreatic cancer. A CT scan showed biliary dilatation and our gastroenterologist recommended an ERCP to further examine the decedent’s pancreatic and bile ducts. On November 6th, the decedent was prepped and intubated, but prior to inserting the ERCP scope, our gastroenterologist took a scout film or preliminary image of the decedent’s bowel. The scout film revealed free air under the diaphragm, indicative of a perforation, and our gastroenterologist decided to abort the ERCP. The decedent’s condition deteriorated and her family refused surgery, executing a DNR. On November 7th, the decedent suffered cardiac arrest and died.

Plaintiffs’ claims centered on the performance of the ERCP. Initially, plaintiffs alleged that our clients failed to properly perform the ERPC and caused an abdominal perforation. However, near the end of pre-trial discovery, plaintiffs amended their Bills of Particulars and alleged that our clients failed to diagnose a pre-existing perforation and document the time of the scout film. In other words, plaintiffs questioned whether the scout film occurred before the ERCP. Plaintiffs also claimed that the doctrine of res ipsa loquitur was applicable.

MCB moved for summary judgment and annexed an Expert Affidavit by a well-credentialed GI/Endoscopist. We contended that, prior to the ERCP, the decedent’s diagnostic imaging studies revealed no evidence of an abdominal perforation and an ERCP was appropriately recommended to potentially treat the decedent’s abdominal pain. In addition, we demonstrated through the Hospital chart that the scout film occurred before the ERCP and any failure to record the time of the film did not proximately cause any injury to the decedent. Furthermore, the decedent’s abdominal perforation was not caused by intubation.

An intra-abdominal perforation can and does usually occur in the absence of negligence and, in our case, could have been in the colon or elsewhere, given the decedent’s symptoms, which were suggestive of colitis, including diarrhea and abdominal pain. Moreover, the perforation could have been induced by the decedent’s chemotherapy or tumor burden on adjacent abdominal structures.

In response to MCB’s motion for summary judgment, plaintiff voluntarily dismissed all claims against the Hospital and our gastroenterologist.