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Plaintiffs’ Expert Testimony on Colon Resection Surgery Speculative, Conclusory


A man suffering from diverticulitis underwent colon resection surgery. After the procedure, the man developed an incisional hernia. The surgeon who performed the original colon resection performed a surgical repair by affixing a Kugel mesh patch to the abdominal wall, in a procedure known as an open repair of an incisional ventral hernia. The man developed a recurrent hernia at the incision site. He required further surgery to remove the patch and repair the recurring hernia.

 

The man and his wife, derivatively, sued the surgeon and his practice group for medical malpractice. The claim was that the surgeon failed to properly secure the patch to the man’s abdominal wall during surgery causing the man further injuries, including scars, adhesions, and recurring hernias requiring additional surgeries. At trial the couple testified and called as witnesses the surgeon and a general surgeon who had examined the man and reviewed his medical records, including the operative report of the nontestifying surgeon who removed the patch. The surgeon and his practice group also called the surgeon as a witness and their own expert, a general surgeon who had reviewed the man’s medical records. The testimony of the surgeon, the couple’s expert, and the surgeon and his practice group’s expert regarding the accepted procedures for this surgery was consistent in all material respects. The disputed factual issue was whether the surgeon followed or deviated from those procedures and whether the subsequent recurrence of the incisional hernia and adhesions was attributable to the deviation.

 

The couple’s expert opined that the surgeon deviated from accepted medical practice through his improper placement of the Kugel patch on and in the abdominal wall, based on the fact that the surgery allowed the small bowel, large bowel, and the bladder to slip through a defect in the abdominal wall. However the couple’s expert never specified which aspect of placement was improper nor offered support for his conclusion that it was secured in a negligent manner so that it permitted the abdominal contents to latch on to the rough side of the mesh, causing further herniation and adhesions. While the couple’s expert focused on the fact that the surgeon’s operative report did not record that two rows of tacks were used or that the required amount of patch overlay was provided, he did not assert that accepted medical practice required that these details be recorded or point to any evidence that the proper practice was not followed. The essence of the couple’s claim was that, because the patch failed to hold the abdominal contents and keep them from protruding through the incision and the man developed adhesions, the surgeon must have deviated from the accepted standard of care. However, the couple’s expert conceded that even under the best of circumstances a patient who has a hernia repair surgery can have recurrent hernias without malpractice. He also admitted that patients can develop adhesions or scars without malpractice as that is the body’s normal inflammatory response to invasive abdominal surgery. While the couple’s expert testified that a hernia repair would not fail if performed with perfect technique, he did not specify any deficiency in the surgeon’s technique nor opined that perfect technique was the applicable standard of care.

 

The surgeon and his practice group’s expert pointed out that neither the surgeon who removed the Kugel patch and inserted a different kind of patch, nor any of the man’s subsequent surgeons, noted the amount of overlay in their operative reports. Further, while the surgeon and his practice group’s expert opined the amount of time that it took the surgeon to complete the surgery, 50 minutes, which was fast, he never stated that it represented a deviation from accepted medical practice. He opined that it was perfectly acceptable, and that the surgeon did not engage in any malpractice.

 

The Sullivan County Supreme Court granted the surgeon and his practice group’s motion for a directed verdict, the trial court found that the couple had failed to present competent, nonspeculative evidence that the surgeon committed medical malpractice when he repaired the man’s incisional hernia. The trial court issued a judgment dismissing the complaint against the surgeon and his practice group.

 

The Appellate Division of the New York Supreme Court, Third Department, affirmed the trial court’s grant of the surgeon and his practice group’s motion for a directed verdict. The court held that the trial court properly granted the surgeon and his practice group’s motion for a directed verdict based on the couple’s failure to establish a prima facie case of medical malpractice.

 

The trial court properly granted the surgeon and his practice group’s motion for a directed verdict based on the couple’s failure to establish a prima facie case of medical malpractice. The couple’s expert merely speculated about what caused the recurring hernia and adhesions. The couple’s expert undermined his unsupported conclusion that the surgeon committed malpractice when he conceded that even under the best of circumstances a patient who has a hernia repair surgery can have recurrent hernias without malpractice, admitted that patients can develop adhesions or scars without malpractice as that is the body’s normal inflammatory response to invasive abdominal surgery, failed to specify any deficiency in the surgeon’s technique, and failed to opine that perfect technique was the applicable standard of care. The couple’s expert relied on the operative report of the nontestifying surgeon who removed the patch. This report did not state that the patch had been improperly placed or secured. It was not critical of the surgeon’s surgery. The court concluded that the couple submitted no competent medical evidence that the surgeon deviated from the accepted standard of care.

 

The Appellate Division of the New York Supreme Court, Third Department, affirmed the trial court’s grant of the surgeon and his practice group’s motion for a directed verdict.

 

See: Peluso v. C.R. Bard, Inc., 2015 WL 176240, 2015 N.Y. Slip Op. 00417 (N.Y.A.D. 3 Dept., January 15, 2015) (not designated for publication).

 

 

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