United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski United States District Judge
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.
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,
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. 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.
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.
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.
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.
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.
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.
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.
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,
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.
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
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.
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.
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.
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.;
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."
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.
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.
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.:
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.
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.
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
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.
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.
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
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 ...