EMAIL TO A FRIEND COMMENT

 

Aspirin and Plavix User Suffers Post-Polypectomy Bleeding; Admissibility of Studies


A man underwent a polypectomy. The gastroenterologist, concerned that the man was at an increased risk for bleeding, directed that he stop taking his aspirin and Plavix. The man was discharged from the surgical facility where the procedure was performed.

 

In the middle of the night, the man experienced bleeding in his colon. His wife drove him to the hospital and he was admitted. That afternoon, the gastroenterologist performed a second colonoscopy, with the intent of cauterizing the bleeding sites.

 

By midday the next day, the man was found to have up to 1800 cubic centimeters of blood in his colon. That loss of blood volume caused a contemporaneous drop in his blood pressure. That drop in pressure, which lasted for a prolonged period of time, limited the circulation of blood to the man’s spine. By noon, the man was unable to move his legs.

 

A different gastroenterologist performed a third colonoscopy in an attempt to clip off the vessel that was bleeding into the man’s colon. The doctors gave the man a unit of platelets, which was intended to counteract the effects of the aspirin and Plavix. Ultimately, the man survived, but with impaired lower body function and no use of his legs.

 

The man and his wife sued the gastroenterologist, his practice group, and the surgical facility. The complaint alleged the gastroenterologist, his practice group, and the surgical facility were negligent in (1) failing to discontinue the man’s aspirin and Plavix at least five days prior to the polypectomy procedure; (2) failing to consult with the man’s other health-care providers about the propriety of discontinuing those medications; (3) failing to perform a diagnostic colonoscopy without a polypectomy; and (4) failing to schedule the polypectomy procedure to accommodate a pre-surgery consultation with the man’s other health-care providers and to allow time for the medications to leave the man’s system.

 

The Lane County Circuit Court admitted evidence of the benchmarking study that reflected a relatively low rate of polypectomy bleeding events at the surgical facility, ruling that the evidence of the study was admissible because the gastroenterologist had relied on it in deciding to proceed with the polypectomy, and, for that reason, was probative of the gastroenterologist’s decision-making process. The couple tried to exclude the evidence mid-trial on the theory that it was privileged under ORS 41.675. They argued that the study was a written report to a peer review body within the meaning of ORS 41.675(2) because it was prepared for and reviewed by the defendant’s surgical facility’s quality management committee. The trial court denied the couple’s motion and admitted the study.

 

The trial court excluded evidence of a 2010 clinical study showing increased bleeding risks in polypectomy patients using aspirin and Plavix. The couple sought to impeach the gastroenterologist by cross-examining him about the study during the defense case. Specifically, the couple was seeking to use the study to attack the credibility of the gastroenterologist’s testimony regarding the absence of studies affirmatively showing a causal link between the use of aspirin and Plavix and post-polypectomy bleeding.

 

The trial court permitted the gastroenterologist, his practice group, and the surgical facility to question the man’s vascular surgeon on cross-examination about the fact that the surgeon kept him on aspirin and Plavix during his vascular surgeries and that that surgeon observed no abnormal bleeding during those surgeries.

 

The jury returned a verdict in favor of the gastroenterologist, his practice group, and the surgical facility.

 

The Court of Appeals of Oregon affirmed. The court held that the trial court did not err in admitting evidence of the benchmarking study that reflected a relatively low rate of polypectomy bleeding events at the surgical facility, and the trial court did not err in excluding evidence of a 2010 clinical study showing increased bleeding risks in polypectomy patients using aspirin and Plavix

 

The trial court did not err in admitting evidence of the benchmarking study that reflected a relatively low rate of polypectomy bleeding events at the surgical facility. The record that the couple created in support of their motion in limine did not compel a factual finding that the study was a document that was “prepared for” or addressed “to” the surgical facility’s Quality Management Committee. The only evidence connecting the study to the surgical facility’s Quality Management Committee was a notation that the study had been discussed at the Quality Management Committee. The appellate court reasoned that the notation did not compel a factual finding that the study was a written report that was prepared for and directed to the Quality Management Committee. It may have been, but it also may have been a publicly available document that, at some point, was discussed with the Quality Management Committee. Certainly, the evidence that the document was produced as part of a nationwide study could cause a reasonable fact finder to have doubts as to whether the document was one that was prepared for the Quality Management Committee. The notations on the document indicating that it also was shared with staff—not only with the Quality Management Committee—could raise similar doubts.

 

The trial court did not err in excluding evidence of a 2010 clinical study showing increased bleeding risks in polypectomy patients using aspirin and Plavix. Evidence of the 2010 study could have impeached the gastroenterologist by suggesting to the jury that he was not knowledgeable about the most recent research, but that evidence also ran the risk of misleading the jury into thinking that the reasonableness of the gastroenterologist’s conduct should be evaluated in the light of information that was not available at the time that he operated on the man. Although the trial court permissibly could have concluded that the probative value of the study as impeachment evidence was not substantially outweighed by the potential for unfair prejudice, it was not unreasonable for the trial court to conclude otherwise.

 

The trial court did not err in permitting the gastroenterologist, his practice group, and the surgical facility to question the man’s vascular surgeon on cross-examination about the fact that the surgeon kept him on aspirin and Plavix during his vascular surgeries and that that surgeon observed no abnormal bleeding during those surgeries. The court reasoned that the evidence was neither offered nor received for purposes of demonstrating the standard of care. Beyond that, the evidence was probative of causation. It also was probative of whether the man’s medical history should have put the gastroenterologist, his practice group, and the surgical facility on notice that the man, in particular, was a person for whom the combination of aspirin and Plavix was likely to cause bleeding problems. The trial court was within its discretion to conclude that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice although a reasonable fact finder permissibly could have reached a different conclusion.

 

The Court of Appeals of Oregon affirmed the trial court’s entry of judgment on a jury verdict in favor of the gastroenterologist, his practice group, and the surgical facility.

 

See: Rowen v. Gonenne, 2015 WL 7008618 (Or.App., November 12, 2015) (not designated for publication).

 

See also Medical Law Perspectives, May 2013 Report: Drugs, Dosage, and Damage: Physician Liability for Prescribing or Administering Medication 

 

 

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