By Damian D. Capozzola, Esq.

The Law Offices of Damian D. Capozzola

Los Angeles

Jamie Terrence, RN

President and Founder, Healthcare Risk Services

Former Director of Risk Management Services 

California Hospital Medical Center

Los Angeles

News: A patient underwent gallbladder removal surgery. When she experienced gastric pain after the procedure, she visited a different physician who performed an endoscopic retrograde cholangiopancreatography to remove what the physician thought was a stone in the patient’s bile duct. Following the second procedure, the patient developed acute pancreatitis and suffered sepsis due to severe necrosis, which resulted in the patient’s death.

The patient’s husband sued, and a jury awarded $4.8 million to the patient’s family and estate. The physician appealed, claiming that the weight of the evidence did not support the verdict. An appellate panel upheld the verdict, finding that there was no dispute the patient developed pancreatitis because of the physician’s procedure.

Background: In 2012, a patient suffering from intense abdominal pain caused by gallstones underwent gallbladder removal surgery. After the surgery, the patient experienced gastric pain and sought a consultation with a different physician than the one who performed the gallbladder removal. The second physician performed an endoscopic retrograde cholangiopancreatography (ERCP). It is performed to diagnose and treat conditions of the pancreas or bile ducts, and is commonly employed when a patient reports abdominal pain, jaundice, or when an ultrasound or CT reveal stones or a mass in the affected organs. Complications from gallbladder surgeries often require an ERCP to evaluate and treat.

In this case, the physician performed the ERCP to remove what the physician believed was a stone in the patient’s common bile duct. Following the ERCP, the patient developed acute pancreatitis and was transferred to a local hospital for treatment. Unfortunately, the patient’s condition deteriorated quickly and significantly. Despite multiple procedures and surgeries, the remedial efforts were unsuccessful. The patient died five months after the initial gallbladder removal, and three months after the ERCP. An autopsy determined that the patient’s cause of death was sepsis due to severe necrotizing pancreatitis.

The patient’s husband filed a medical malpractice action against the physician who performed the ERCP and the physician’s employer, alleging the physician performed the procedure negligently and perforated the patient’s pancreatic duct when attempting to access the common bile duct. The plaintiff presented expert testimony from a gastroenterologist who reviewed the images taken during the ERCP and testified that the physician had punctured the patient’s pancreas. The plaintiff’s expert also opined that the physician was negligent for failing to place a pancreatic stent at the time of the procedure and did not adequately hydrate the patient after diagnosing the pancreatitis. According to the expert, the patient would have survived if proper procedures were followed, even with the pancreatitis diagnosis. The defendants denied liability.

A jury found that the physician’s treatment fell below the standard of care and awarded $2.52 million to the patient’s family for her pain, suffering, and loss of society, and $2.26 million to the patient’s estate for her pain and suffering, emotional distress, and medical expenses. The defendants appealed, arguing the jury’s verdict was against the weight of the evidence. However, an appellate court panel upheld the full award and ruled that there was no dispute the patient developed pancreatitis because of the ERCP. The court noted that the plaintiff’s expert physician’s testimony supported the verdict.

What this means to you: In this case, one of the most critical lessons is the importance of experts in medical malpractice cases. Since medical malpractice cases almost always involve issues beyond the knowledge of laypersons, experts play a vital role in the litigation process and in convincing a jury that a physician or care provider satisfied, or failed to satisfy, the applicable standard of care. An effective expert can explain persuasively the applicable standards in a manner jurors can understand easily, and how the care provider’s actions met the standard. Picking the right expert to assist in the defense of a medical malpractice action is equally crucial. Physicians and care providers should work closely to evaluate prospective experts. Similarly, once the expert is selected and retained, physicians and providers, along with their counsel, can evaluate the patient’s claims and discuss the applicable standards of care that the plaintiff claims were not satisfied.

Here, the plaintiff’s expert opined that the defendant physician’s actions fell below the standard of care not only because of the perforation during the procedure, but also because he failed to hydrate the patient and place a stent at the time of the procedure. Perforations during surgical procedures may or may not be an inherent risk of a procedure, depending on the specific procedure involved. Pancreatitis and perforations are known risks for patients undergoing an ERCP. Physicians and care providers must inform patients about such risks — as well as prepare for the possibility of these developments. This is one of the reasons why the physician in this case committed malpractice, according to the plaintiff’s expert: The defendant could have saved the patient’s life had a pancreatic stent and adequate hydration been provided.

Clinical expertise is important for physicians to avoid the need for experts during a trial. Physicians and surgeons must continue to upgrade their skills and keep abreast of the latest updates based in current research and trends in care as published in professional journals. Medical staffs must follow peer reviewed standards to assure their members maintain the established standards of care and incorporate new changes in a timely manner. Regardless of how common or routine a procedure may be to the physician, the variables with which each patient can present must be taken into consideration, especially if previous interventions performed by a different provider did not go well. If proctoring is recommended, it must be provided and monitored. In instances where experts are not available for proctoring, consultation, or peer review, outside resources must be provided, either on site or remotely. Each physician’s reputation and the reputation of the organizations they work for and/or in is based on the performance of each individual. Barriers to open communication, a reluctance to seek out consultation, and the drive to practice with the assumption that the practitioner can be independent of the aforementioned puts them in jeopardy at the very least and at the worst puts their patients at extreme risk.

While appeals always are a possibility, the process is costly, time-consuming, and often unsuccessful. Appellate courts employ deferential standards, especially for factual issues, as trial courts and juries are better suited to evaluate witness testimony and credibility. Here, the appellate court found that the evidence was not “overwhelmingly” in the defendants’ favor such that “no contrary verdict” could stand.

Appellate courts work from written records and transcripts of the proceedings, which do not facilitate evaluation of credibility. Thus, if a jury determines that a witness’s version of events is suspect, an appellate court is unlikely to change that or the results of such a determination. Physicians and care providers should consider these facts when evaluating whether to pursue an appeal. In the face of an adverse verdict, it may be more prudent to forgo an appeal; such an option can be leveraged further by agreeing with the plaintiff to forgo the appeal in exchange for the plaintiff agreeing to waive certain legal costs such as court filing fees, which the prevailing party often can recover. If the appeal is pursued and unsuccessful, the prevailing plaintiff inevitably will seek those in addition to the appellate costs, adding even more expense to the adverse verdict.


Decided on July 5, 2019, in the Appellate Court of Illinois, Fourth District, Case Number 4-18-0547.