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Expert’s Affidavit on Causation Contrary to Deposition; Laparoscopy After Bypass


A woman underwent a successful laparoscopic gastric bypass surgery. The woman developed complications from the surgery. The day after surgery, she had hypoactive bowel sounds, abdominal pain, nausea, and an inability to pass gas, and complained of these conditions throughout the day. The results of an abdominal x-ray and upper GI study were negative for obstruction. When the doctor who provided postoperative observation and treatment visited the woman, she was doing well and denied having nausea. She began complaining of nausea again at around midnight.

 

Two days after surgery, the surgeon examined the woman and diagnosed her with a postoperative ileus, a common post-operative disruption of the intestinal tract. The surgeon prescribed the woman a medication to treat the condition and instructed nurses to discharge her from the hospital if her situation resolved. As of 10:23 p.m., nursing notes reflected that she was voiding and passing gas and that her vital signs were stable. She was discharged from the hospital.

 

Three days after surgery the woman again experienced nausea and abdominal pain. A CT scan revealed a complete bowel obstruction. During an emergency laparoscopic surgery, her bowel was perforated and she developed sepsis, which in turn caused more complications and an extended hospital stay.

 

The woman sued the surgeon who performed the laparoscopic gastric bypass surgery, the doctor who provided postoperative observation and treatment, and the hospital for medical malpractice. The complaint alleged that the surgeon and doctor failed to timely diagnose the bowel obstruction and that this failure led to an increased risk of bowel perforation during a later surgery to remove the obstruction. The complaint did not allege that either the bypass or emergency laparoscopic surgeries were negligently performed, or that her bowel obstruction or the emergency surgery could have been avoided. It was undisputed that the woman’s bowel obstruction would have required surgical treatment regardless of when it was diagnosed and that bowel perforation is a common complication of bowel obstruction surgery. The woman’s argument was that had the bowel obstruction been discovered sooner her chances of suffering a bowel perforation would have been lower.

 

During the woman’s expert’s deposition, he testified that the surgeon and doctor should have performed a radiological study if the woman’s condition was not improving. He also testified that over the course of the day before the bowel obstruction was diagnosed, the woman represented that her pain was improving. He testified that the surgeon and doctor should not necessarily have suspected a bowel obstruction the day before it was diagnosed.

 

 After the deposition, the woman submitted an affidavit by the same expert in which he stated that the medical professionals should have diagnosed a bowel obstruction one day earlier and that, as a result, the woman suffered an increased risk of a bowel perforation.

 

The surgeon, doctor, and medical center filed motions for summary judgment. The motions argued that the woman failed to provide evidence that their actions proximately caused her injury because the woman’s expert’s affidavit was directly contradictory to his testimony at deposition. The trial court denied their motions.

 

The Court of Appeals of Michigan reversed. The court held that the only factual support for causation was contained in an affidavit contrary to deposition testimony.

 

The only factual support for causation was contained in an affidavit contrary to deposition testimony. The woman’s expert’s affidavit was contrary to his deposition testimony regarding causation. The woman’s expert’s did not testify at his deposition that failure to conduct a radiological scan the day prior to her obstruction being diagnosed led to a significantly increased risk of perforating the woman’s bowel during her later surgery. The court concluded that the trial court should not have considered the woman’s expert’s contradictory affidavit when ruling on the surgeon’s, doctor’s, and medical center’s motions for summary judgment. Because the woman’s expert’s contrary affidavit was the only support for the proposition that a radiological scan on the day prior to her obstruction being diagnosed would have led to a more positive outcome, the court concluded that the trial court should have granted summary disposition in favor of the surgeon, doctor, and medical center.

 

The Court of Appeals of Michigan reversed the trial court’s denial of the surgeon’s, doctor’s, and medical center’s motions for summary judgment.

 

See: Goedker v. Schram, 2016 WL 2731079 (Mich.App., May 10, 2016) (not designated for publication).

 

See also Medical Law Perspectives, June 2015 Report: Gastric Bypass, Sleeve Gastrectomy, Lap Banding and More: Risks of Patient Injury and Provider Malpractice in Weight-Loss Surgery 

 

 

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