On January 23, 2025, Senior Trial Partner Christopher A. Terzian, Esq., assisted by Partner Victor Ivanoff, Esq., achieved a defense verdict in a case alleging improperly performed bariatric surgery in 2017. The plaintiff's counsel had requested that the jury award a total of $2.5 million as compensation for the plaintiff’s physical damages, which she claimed were caused by MCB’s client doctor's negligence and malpractice.
The plaintiff was a then 64-year-old obese woman who sought to lose weight via a laparoscopic gastric sleeve surgery offered by the defendant surgeon. She had initially attended a seminar given by the doctor, and then chose to see him at his office for an initial consultation in May of 2016. At the initial visit, the doctor went over the risks, benefits and potential complications of the proposed laparoscopic surgery. The procedure involved removing half of the plaintiff's stomach. The plaintiff had a history of open abdominal surgery seven years prior to this initial visit with our client doctor. The plaintiff contended and testified that the doctor did not advise her that she was at higher risk for a potential bowel perforation during the laparoscopic sleeve gastrectomy because of her intra-abdominal adhesions caused by the previous surgery. In addition to discussing the risks, benefits and potential complications with the plaintiff, the doctor provided the plaintiff with a pamphlet regarding the proposed surgery, which included information on bariatric surgeries in general. The pamphlet also indicated potential complications from bariatric surgery, specifically the laparoscopic sleeve gastrectomy, which the included potential for an intra-abdominal organ injury. The plaintiff contended she never received that pamphlet. Plaintiff testified she never would have agreed to the laparoscopic sleeve gastrectomy if she had known that she was at high risk for an operative complication of a bowel perforation due to her adhesions from the prior surgery. The doctor had the plaintiff sign a three-page consent form for the proposed laparoscopic surgery, which also required her to initial each page. The consent form also documented the potential risk of organ damage/perforation from the proposed surgery. The plaintiff also had to answer a three-page questionnaire regarding the potential risks, benefits and complications of the proposed surgery.
Over a course of seven months, the plaintiff underwent pre-surgical testing and evaluation for the proposed surgery. This included a psychological evaluation, an upper G.I. series, along with cardiac, pulmonary and internal medicine clearances. The plaintiff also had a second visit with the doctor to discuss the proposed surgery 12 days before it was scheduled. The plaintiff allegedly discussed misgivings about the surgery at the second visit, and the doctor answered all of her questions and addressed her concerns.
During the performance of the laparoscopic sleeve gastrectomy, the doctor nicked the outer layer of the large bowel adjacent the stomach. The plaintiff's counsel did not contest that the injury itself was a risk of the procedure. However, plaintiff's counsel claimed that her client was at higher risk for the injury because of the significant amount of adhesions from the surgery seven years earlier, which had to be taken down before the stomach could be cut in half and removed. The doctor sewed the serosal layer bowel injury and completed the surgery. He told the patient that there had been a complication, and that it was possible she might have to go back to the operating room for another laparoscopic procedure. Two days later plaintiff experienced signs of infection, and the defendant doctor immediately brought her back to the operating room for a laparoscopic procedure to inspect the injured site for a possible repair. The doctor was able to locate an area of bowel perforated at or near the site of the original serosal injury. Laparoscopically he was able to close the perforation and evacuate feces and infected fluid. The plaintiff then had an extended hospitalization of another four weeks, during which she was on IV antibiotics, intubated at times, and had drains in her abdomen to allow abdominal fluid to continue to drain out along with any remaining feces. About a week after she was discharged, she had to return to another hospital because she was experiencing fecal impaction. At this second hospital she had continued drainage of abdominal fluid and IV received antibiotics. After a week admission, she was discharged to home. Plaintiff had no further sequela from the bowel injuries.
The plaintiff's experts were a bariatric surgeon and infectious disease physician. The bariatric surgeon claimed that the defendant doctor did not provide appropriate information to the plaintiff for her to provide an informed consent to move forward with the bariatric surgery. The doctor also contended that the laparoscopic repair of the serosal injury was improperly performed, which caused it to break down, and necessitated the second laparoscopy. The plaintiff's expert contended that the defendant doctor should have performed an open surgery to repair the perforation rather than a second laparoscopic surgery. The plaintiff' s expert bariatric surgeon contended that the bowel perforation was not properly repaired and if an open surgery had been done, the injury could have been better visualized, the abdominal fluid and feces would have been better evacuated, and the plaintiff would have had a shorter hospitalization. The expert contended an infectious disease physician should have been contacted and the feculent abdominal fluid should have been cultured at the time of the surgery, so that the bacteria in the fluid could have been identified sooner than it was. The plaintiff's expert, infectious disease physician contended that while the antibiotic coverage was appropriate for the bacteria identified, another antibiotic should have also been administered. The expert also criticized the postoperative care.
The defense experts were a bariatric surgeon and an infectious disease physician. The defendant's expert bariatric surgeon testified that the written evidence of informed consent was more than adequate, and that the doctor's testimony concerning his customary practice in discussing the risks, benefits and complications of the surgery with the plaintiff was within accepted standards of care. The expert also contended that both laparoscopic bariatric surgeries were done properly, and that an open surgery to repair the initial repair of the serosal injury that had broken down, would have been much worse for the plaintiff. An open surgery would have led to extensive abdominal adhesions which could be painful, potential small bowel obstruction in the future, a very large scar extending from the sternum past the umbilicus, an open wound that would be subject to greater risk of infection of skin and tissue, and a much lengthier hospital stay. The defendant's expert infectious disease physician testified the antibiotics given to the plaintiff after the second surgery were appropriate for the bacteria found in the abdominal cavity, and that the postoperative care by the defendant doctor was within accepted standards of care.
Mr. Terzian and his experts were able to convince the jury that the MCB’s client doctor’s care was within good and accepted practice of bariatric surgery. The jury rendered a defense verdict in favor of the doctor after approximately 3 1/2 hours of deliberations.