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Wertman v. United States

United States District Court, W.D. Virginia, Roanoke Division

January 23, 2017

JOYCE WERTMAN, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION

          Michael F. Urbanski United States District Judge

         Plaintiff Joyce Wertman, Administrator of the Estate of William James Lovell, brought this action for wrongful death against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. and 28 U.S.C. § 1346(b)(1). Wertman alleges that actions taken by Dr. Arindham Choudhury and Dr. Paris Butler on January 30, 2012, while performing a cholecystectomy at the Salem VA Medical Center, amount to medical malpractice that caused William Lovell's death on February 18, 2012.

         The court held a bench trial on October 24-25, 2016. Based on the findings of fact and conclusions of law that follow, the court GRANTS judgment to the plaintiff in the amount of $793, 423.78.

         FINDINGS OF FACT

         Lovell's Treatment History

         1. On December 8, 2011, William James Lovell, a 65-year old veteran, arrived at the Salem VA Medical Center in Salem, Virginia, complaining of symptoms associated with acute cholecystitis (inflammation of the gallbladder). Trial Tr. Vol. 1, Oct. 24, 2016, ECF No. 69, 27:9-16.[1] According to Dr. Choudhury, Lovell's treating physician at the Salerri VA, Lovell "was having right upper-quadrant pain and inability to eat for several months prior to his presentation." Trial Tr. Vol. 2, Oct. 25, 2016, ECF No. 70, 14:14-16. Dr. Choudhury determined that Lovell suffered from cholangitis, an infection of the liver's bile ducts, and likely chronic cholecystitis, meaning he had longstanding issues with infection and gall stones in his gallbladder. Trial Tr. Vol. 2, 13:23-14:8. As a result of this diagnosis, Lovell travelled to the Hunter Holmes McGuire VA Medical Center in Richmond, Virginia for an endoscopic retrograde cholangiopancreatography ("ERCP") to drain his bile ducts. Trial Tr. Vol. 2, 14:17-21, 15:10-17.

         2. On December 12, 2011, doctors at the Hunter Holmes McGuire VA Medical Center performed the ERCP on Lovell to alleviate infection and associated symptoms of stones in the biliary tract. ERCP Report, ECF No. 59-2, at 1. As explained by Dr. Choudhury:

ERCP stands for endoscopic retrograde cholangiopancreatography, which is basically, in simple terms, someone puts an endoscope down into the duodenal area, which is the second portion of the duodenum; they put a plastic tube that they can put dye into and they backfill, so you can actually look at the what the biliary-the word "biliary tree" is used commonly in our understanding, but it's the bile ducts. So you can see a road map of the bile ducts.

         Trial Tr. Vol. 2, 15:10-17. During the procedure in Richmond, the doctors performed a stone removal and placed a stent in the biliary tract. ERCP Report at 1.

         3. Following the ERCP, Dr. Choudhury scheduled a laparoscopic cholecystectomy to remove Lovell's gallbladder at the Salem VA on January 30, 2012. Trial Tr. Vol. 2, 17:6-10. The laparoscopic procedure allows for an easier recovery than an open cholecystectomy. Id. Generally, such gallbladder removal surgeries are scheduled six to eight weeks after an ERCP. Trial Tr. Vol. 2, 16:10-12. This allows "the inflammatory process to resolve ...before proceeding with cholecystectomy." Report Letter from Dr. William Kelley, Richmond Surgical, re: WMam Lovell (June 2, 2016), ECF No. 62-5, at 1.

         4. On January 30, 2012, Dr. Butler, a supervised resident, and Dr. Choudhury, acting as the attending physician, performed the cholecystectomy on Lovell. Trial Tr. Vol. 2, 18:17- 19:2. However, during the surgery, Drs. Choudhury and Butler encountered complications that hindered their ability to access and view the gallbladder. Trial Tr. Vol. 2, 21:1-20. As a result, Dr. Choudhury decided to convert the procedure from a laparoscopic cholecystectomy to an open cholecystectomy. Trial Tr. Vol. 2, 22:5-12. The open procedure allowed Drs. Choudhury and Butler more direct visualization and control over the area on which they were operating. Trial Tr. Vol. 2, 21:21-24.

         5. After converting the procedure to an open cholecystectomy, Drs. Choudhury and Butler encountered further complications. There was a small tear in Lovell's right hepatic flexure of the colon (large bowel), which the doctors repaired through stitching. Trial Tr. Vol. 2, 23:6-22. The doctors also recognized that the gallbladder was extremely scarred and densely adherent. Trial Tr. Vol. 2, 22:23-23:5. Dr. Choudhury then determined that continuing to cut, in an effort to remove the entire gallbladder, was too dangerous. Trial Tr.Vol. 2, 24:7-15. He therefore converted the procedure to a subtotal cholecystectomy. Trial Tr. Vol. 2, 24:16-19. A subtotal cholecystectomy involves taking out only a part of the gallbladder, in this case, the part that was visible, in lieu of the whole gallbladder. Id.

         6. Upon deciding to convert die procedure to a subtotal cholecystectomy, Drs. Choudhury and Butler transected, or cut, the gallbladder open. Trial Tr. Vol. 2, 24:22. Dr. Choudhury believed he removed four centimeters of Lovell's gallbladder, which was at most half of the organ. Trial Tr. Vol. 2, 25:16-17. Prior to closing Lovell's incision, the doctors washed the area and took efforts to assure no bile leaks were present. Trial Tr. Vol. 2, 26:4-17. At the time of the surgery, Dr. Choudhury believed mat neither he nor Dr. Butler:transected the common bile duct (a part of the gastrointestinal tract) or the jejunum (a part of the small bowel). Trial Tr. Vol. 2, 26:20-27:23.

         7. Following the subtotal cholecystectomy procedure, Lovell was discharged from the Salem VA on February 1, 2012. Trial Tr. Vol. 2, 39:19-20. The medical records reflect that Lovell was doing well postoperatively, that he was able to eat regular food, and that he reported low levels of pain. Trial Tr. Vol. 2, 39:23-40:6.

         8. On February 4, 2012, Lovell went to the Emergency Room at Wythe County Community Hospital ("WCCH") suffering from urinary retention. WCCH Records (Feb. 4, 2012), ECF No. 59-5, at 4. He was accompanied by Joyce Wertman, the plaintiff in this suit. Lovell received a Foley catheter and was discharged. WCCH Records at 11-12. Although the hospital records reflect that Lovell's pain level was zero after insertion of the catheter, see WCCH Records at 8, 12, Wertman testified that, despite the catheter, Lovell was unable to urinate and remained in a great deal of pain after being discharged.

         9. Reporting "severe abdominal pain, " Lovell returned to WCCH in the early morning hours of February 5, 2012. Trial Tr. Vol. 1, 64:21. He underwent a CT scan that revealed "what appeared to be a perforation of the intestine with free fluid and gas in the abdominal cavity." Trial Tr. Vol. 1, 64:20-23. Lovell was then transferred to Carilion Roanoke Memorial Hospital ("CRMH") for surgery. Trial Tr. Vol. 1, 64:23-25; CRMH Laparotomy Summary, ECF No. 59-6.

         10. Dr. Jesse Davidson, Lovell's attending physician at CRMH, performed an emergency surgery in Lovell's abdomen consisting of an exploratory laparotomy and repairs to perforation of the small intestine. CRMH Laparotomy Summary at 1. Upon entering the abdomen, Dr. Davidson discovered a large quantity, approximately three liters, of bilious fluid. Trial Tr. Vol. 2, 81:1-3. Although Dr. Davidson testified that the bile could have' been in Lovell's abdominal cavity for as little as eight hours, Trial Tr. Vol. 2, 82:9, the "death summary" he dictated stated "that the bile had been present in the peritoneal cavity for several days." Trial Tr. Vol. 2, 88:21-23. As to the conclusion in the death summary that the fluid had been in Lovell's abdomen for several days, Dr. Davidson explained he "just felt like off the top of my head that that's what it probably had been." Trial Tr. Vol. 2, 89:9-10. In any event, the bile was "consistent with enteric perforation, " meaning that "there was; a hole in the bowel and that the contents had leaked into the abdomen and caused an inflammatory reaction." Trial Tr. Vol. 2, 81:19, 81:21-23. After Dr. Davidson suctioned and cleaned this fluid he found a hole in Lovell's jejunum, a part of the small bowel. Trial Tr. Vol. 2, 81:4-13; CRMH Laparotomy Summary at 2. Dr. Davidson repaired the hole with sutures and ' proceeded to inspect the remainder of the abdomen. Id. The only additional abnormality Dr. Davidson could find was an inflammatory reaction where Lovell previously had gallbladder surgery. Trial Tr. Vol. 2, 81:8-10. Finally, Dr. Davidson left two drains in Lovell, one in his right upper abdomen and the other in his right lower abdomen, and then closed Lovell's incision. Trial Tr. Vol. 2, 81:11-13.

         11. Despite the emergency laparotomy, Lovell did not recover. He developed a number of problems including acute renal failure, which required insertion of a catheter and continuous replacement renal therapy. CRMH Discharge Notes, Feb. 27, 2012, ECF No. 62-3, at 2. He also developed ongoing "systemic inflammatory response syndrome or reaction syndrome" or SIRS. Trial Tr. Vol. 2, 102:17-18. According to Dr. Davidson, SIRS "basically means your body has developed intense inflammatory changes throughout the system in the bloodstream, in the lungs, [and in] the kidneys due to some sort of ongoing infection or chemical problem." Trial Tr. Vol. 2, 102:19-22. Dr. Davidson determined that Lovell's SIRS was the result of bile leaking into his abdomen. Trial Tr. Vol. 2, 103:21-24. Lovell also developed respiratory failure and required a tracheostomy, which Dr. Davidson performed on February 14, 2012. Trial Tr. Vol. 2, 105:13-17.

         12. On February 14, 2012, Dr. Paul Yeaton at CRMH performed another ERCP- endoscopic retrograde cholangiopancreatography-in an effort to stop the bile leak. CRMH ERCP Notes, ECF No. 62-7. After the procedure, Dr. Yeaton confirmed a "[h]igh grade bile leak consistent with transaction of the common hepatic duct." CRMH ERCP Notes at 2. The ERCP, however, failed to stop the bile leak. Trial Tr. Vol. 2, 109:4-5. Therefore, Dr. Yeaton recommended a percutaneous hepatic cholangiogram ("PTC"), another procedure that could have stopped the bile leak. Trial Tr. Vol. 2, 108:18-22.;

         13. Dr. Thomas Bishop, also a CRMH physician, performed the PTC on February 15, 2012. CRMH PTC Notes, ECF No. 62-8. According to Dr. Davidson, Dr. Bishop was trying to "access a bile duct through which he could place a guide wire hopefully through the!area that was transected, and then over the guide wire place a stent to stop the leakage." Trial Tr. Vol. 2, 108:18-22. Although Lovell did not experience complications from the PTC, the procedure was not successful in resolving the bile leak. CRMH PTC Notes at 2. However, Dr. Bishop was able to image Lovell's biliary system; his report notes: "The common bile duct appears to be transected just below the bifurcation of the left and right intrahepatic ducts, however additional cholangiography may be required to more clearly delineate the anatomy." Id.

         14. By February 15, 2012, it was clear to Dr. Davidson that the source of the infection, or sepsis, was the leaking bile duct. Trial Tr. Vol. 2, 111:21-23. On February 16, 2012, Dr. Davidson spoke with Dr. Yeaton and Dr. Bishop, who were going to make a third attempt "to try endoscopically [to] reconstruct [the] bile ducts." CRMH Records, ECF No. 62-7, at 65. This attempt to stop bile leakage, however, was also unsuccessful. Trial Tr. Vol. 2, 112:16-17.

         15. On February 17, 2012, CRMH surgeon Dr. John Wessinger performed a cholangiogram on Lovell in yet another attempt to stop the flow of bile. Trial Tr. Vol. 2, 113:8-16; CRMH Records at 49. As Dr. Davidson testified, Dr. Wessinger "was able to place a drain across that transection, the hope being that that would then drain the bile contents from the area of transection into the normal flow pattern into the bowel." Trial Tr. Vol. 2, i 113:18-21. Lovell, however, did not improve.

         16. By the morning of February 18, 2012, Lovell was critically ill. CRMH Records at 47. Dr. Robert Keely, a CRMH physician, noted: 'Tersistent decline despite all efforts. [Patient] examined, chart reviewed, discussed with wife. I think that he will succumb to his problems in the next 12-24 hr ... Will continue all care otherwise." CRMH Records at 43. A shoit time later, at 1:15 PM, Lovell died. CRMH Records at 42. The "Discharge Summaries" prepared by Dr. Davidson listed the factors that led to Lovell's death: (1) multi-system organ failure; (2) small bowel perforation; and (3) transection of the common bile duct with biliary peritonitis. CRMH Discharge Notes at 1.:

         Standard of Care

         The applicable standard of care and whether Drs. Choudhury and Butler breached that standard in treating Lovell were central issues at trial. Both plaintiff and defendant presented to the court expert testimony on these questions. The evidence presented by plaintiff as to the standard of care issue took the form of expert testimony by Dr. Aaron Chevinsky. Defendant presented the expert testimony of Dr. Choudhury and Dr. William Kelley.

         17. The court admitted Dr. Chevinsky as an expert witness as to standard of care and causation "with regard to general surgery, particularly with regard to gallbladder surgery, and with regard to postoperative care of folks who suffer from some complications or issues related to gallbladder surgery." Trial Tr. Vol. 1, 22:14-19. Dr. Chevinsky has over 25 years of experience as a medical doctor, is a board certified general surgeon, and has conducted numerous laparoscopic and open gallbladder removal surgeries.

         18. Dr. Chevinsky testified that converting Lovell's procedure from a laparoscopic. cholecystectomy to an open cholecystectomy "was a perfectly appropriate decision for that surgeon to make." Trial Tr. Vol. 1, 37:6-7. However, to meet the standard of care during an j open cholecystectomy, Dr. Chevinsky testified:

You need to conclusively identify the structures you are cutting before you cut them, otherwise you shouldn't cut them. And that can manifest in a number of ways, either by direct visual identification, identification by using what is called a cholangiogram. And anything that says "gram" means it's an x-ray. And "cholangio" means bile duct ... [B]efore making any cut to or dividing any structure, you need to identify the duct and the artery, the cystic duct and the cystic artery. You have to know also where the common bile duct resides. [ Trial Tr. Vol. 1, 39:12-18, 40:13-16. Dr. Chevinsky testified that these steps are important given that "the lower part of the gallbladder can be sitting right on top of the duct, as [he] believe[d] happened in this case."

Trial Tr. Vol. 1, 40:3-5. In other words, a doctor risks cutting the wrong tissue without first identifying the bile duct and other structures.

         19. Based on his review of Lovell's medical records, Dr. Chevinsky concluded that' Drs. Choudhury and Butler violated the standard of care because they cut the gallbladder without positively identifying the surrounding structures. Trial Tr. Vol. 1, 55:22. Dr. Chevinsky acknowledged "that there are mitigating factors that might make [identifying the structures] difficult, " such as the thickening of the gallbladder, which may have prevented a successful cholangiogram. Trial Tr. Vol. 1, 56:8-12. Nevertheless, Dr. Chevinsky's testimony indicates i that Drs. Choudhury and Butler's failure to attempt a cholangiogram or an alternate method of identifying the surrounding structures amounted to a breach of the standard of care. Trial Tr. Vol. 1, 57:22-58:18.

         20. Dr. Chevinsky also testified that the injury to Lovell's small bowel occurred sometime during the cholecystectomy performed by Drs. Choudhury and Buder. Trial Tr. Vol. 1-73:11. Because Drs. Choudhury and Butler recognized and fixed an injury to Lovell's large bowel during the procedure, see Findings of Fact, supra ¶ 5, "under the standard of care, when you've already had one bowel injury, prior to closing you should look at the rest pf the bowel, at least to die extent that you can." Trial Tr. Vol. 1, 77:5-8. This standard, moreover, applied whether the small bowel injury was initially a full-thickness or a partial-thickness injury, which was a matter of contention at trial. Trial Tr. Vol. 1, 77:1-5. Although Dr. Chevinsky believed it was a full-thickness perforation at the outset, he could not say "with absolute certainty that this was a full-thickness perforation at the surgery that Dr. Choudhury did, or a partial-thickness injury which became full-thickness over the next several days." Trial Tr. Vol. 1, 141:12-19. i 21. At trial, Dr. Choudhury served both as a fact witness as Lovell's surgeon at die Salem VA and as an expert witness with respect to gallbladder surgery. See Trial Tr. Vol. 2, 12:1-11 (qualifying Dr. Choudhury as an expert witness).

         22. When asked by defense counsel whether it would be "a breach in the standard of care not to be able to detect a bile leak intraoperatively, " Dr. Choudhury testified that he did not think it would. Trial Tr. Vol. 2, 38:21-39:6. Dr. Choudhury elaborated:

[I]t certainly would be a breach in the standard of care to be | bullheaded and start operating in an area that is very scarred in, j because you could do a lot more damage to the common duct, to the point that no one could repair it. And I think that's what we ...

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