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 (2004-2013)

California Hospital Medical Center

Los Angeles

Elena N Sandell, JD

UCLA School of Law, 2018

News: A patient underwent a procedure to drain an abscess. During the procedure, the physician became confused about the location of the trocar (a sharp instrument) and pushed it too far, puncturing the patient’s lung, liver, and heart. As a result, the patient suffered severe, permanent, and debilitating injuries.

Liability was previously resolved. The patient was awarded the maximum permitted for noneconomic damages, but economic damages were unresolved. During this phase of the trial, the judge resolved the dispute and awarded $3.1 million in medical expenses.

Background: In October 2015, a patient, a military veteran, underwent a cholecystectomy, the surgical removal of the gallbladder, at a federally funded hospital. After the surgery, the patient developed a peritoneal abscess, which required draining. The abscess was discovered in May 2016. A physician drained the abscess using ultrasound and a CT-guided technique.

During the procedure, the physician became confused about the location of the trocar, a sharp medical instrument used to access a patient’s body cavity. The physician impacted and punctured the patient’s hepatic diaphragm and pericardium. The patient’s blood pressure dropped severely, requiring emergency surgery. Furthermore, blood was discovered in the patient’s pericardium, as well as a large clot surrounding the heart. The surgery also revealed the physician misplaced the drain tact, causing additional injury.

The patient remained hospitalized for nearly two weeks after the surgery, after which he was transferred to a different hospital. Additional procedures were performed at the second hospital, including drawing fluid from the patient’s lungs and treating a collapsed lung. All the injuries were related to the initial botched procedure. In addition, the patient required speech, occupational, and physical therapy. Because of the piercing of the pericardium and diaphragm, the patient continued to suffer from injuries, including blood clots in his legs and lungs, which required additional and ongoing medical treatment.

The patient filed a lawsuit against the United States, since he received services from the federally funded hospital that employed the physician who performed the surgery. The patient alleged the physician breached his duty by failing to provide care within the applicable standard, specifically by piercing the patient’s internal organs during surgery. In his request for damages, the patient claimed that as a direct result of the physician’s negligence, he suffered permanent and severe damage to his diaphragm, cardiovascular system, and respiratory system; incurred additional medical expenses; and underwent significant pain and suffering from the protracted hospitalizations and remedial procedures.

After a bench trial in November 2019, a judge agreed the defendant physician’s negligence was the proximate cause of the patient’s injuries. The judge awarded the maximum allowed amount for noneconomic damages — $500,000 — but economic damages, including the patient’s recovery of medical fees, was unresolved due to a dispute over reductions.

On May 13, 2020, the court resolved the dispute and awarded the plaintiff $3.1 million in economic damages. The court ruled the patient would remain permanently debilitated, susceptible to infection, and would require more medical care for the remainder of his life. The amount awarded sought to compensate the patient and his spouse for the injuries suffered, for pain and suffering, for his extensive medical expenses, and for his lost wages. The court noted the plaintiff already sustained more than $2 million in medical expenses alone.

What this means to you: This case, and the significant monetary award, reveals some important lessons about liability and damages, including how statutory maximums can affect medical malpractice actions. The $3.1 million award reflected the severe injuries the patient suffered in a case where the physician’s negligence was well documented and beyond question. In its opinion, the court found the permanent and catastrophic injuries were due to multiple breaches of the applicable standard of care. More specifically, the physician’s multiple perforations during a standard procedure, the drainage of an abscess, were indisputably below what a reasonable physician would have done in the same or similar circumstances.

These initial perforations were the direct and proximate cause of the patient’s subsequent complications and injuries. On top of negligence, subsequent failures to discover and promptly treat the resulting injuries compounded the situation. At the time of the initial negligence and injury, the physician and the hospital staff should have consulted with another appropriately qualified physician to evaluate the patient and to determine the proper course of treatment. This course of action would have enabled the care providers to mitigate damages caused by the initial injury and reduce the likelihood of further injuries. According to the plaintiff’s expert, if the patient’s condition had been appropriately monitored and treated, several injuries he suffered months after the drainage surgery never would have occurred, including a collapsed lung and several blood clots.

Beyond the actions that constituted malpractice, this case also provides insight into an injured patient’s recovery of damages in terms of the substantive amount of recovery and some procedures concerning recovery. Damages are comprised of two parts: noneconomic damages (for pain and suffering, physical impairment, disfigurement, and other subjective, nonquantifiable categories) and economic damages (for medical expenses, lost income, out-of-pocket expenses, and other specifically quantifiable categories). In this case, the noneconomic damages initially were awarded with the finding of liability: $500,000. This concrete amount is a result of a statutory maximum for medical malpractice actions for the state in which the injury occurred. Many other states have enacted similar laws, limiting the maximum noneconomic damages an injured patient may recover, even if the pain and suffering otherwise would be more compensable.

For care providers, these statutory maximums serve important functions, including facilitating the reduction of insurance premiums, and are important when evaluating a prospective or actual medical malpractice claim. For example, if a patient claims to have suffered severe emotional distress, but has not paid much out-of-pocket costs through lost income or actual medical bills, the patient’s recovery may be almost exclusively noneconomic — and limited, based on the applicable state’s maximum. While each case is unique, settlement may be a more sensible option if the patient’s recovery is based on this maximum amount, as a runaway jury could not award an eight- or nine-figure sum based solely on the patient’s pain and suffering. Care providers should consult closely with counsel to determine any applicable statutory maximums and how such maximums affect case analysis and resolution.

In this case, the evidence presented indisputably showed the physician’s negligence caused the patient irreparable harm. The court recognized the significant pain and suffering the patient endured, and confirmed the highest award available by law for noneconomic damages. Furthermore, the litigation sought to recover costs for the three years of continued assistance and care the patient’s wife was required to provide. The court recognized the care was necessary, but while the plaintiff alleged his wife’s assistance was required for 16 hours a day, the court reduced this amount to eight hours a day. Accordingly, the court awarded $113,120 for past attendant care. Regarding future medical expenses, the court calculated the 70-year-old plaintiff had a realistic life expectancy of 9.5 years. The court considered conflicting expert opinions proffered by both the plaintiff and care provider, which respectively predicted 14- and six-year life expectancies.

Due to the nature and severity of the injuries and the plaintiff’s age, he argued he could not effectively manage his day-to-day activities independently, and would require constant care and assistance. Although the defendant argued to the contrary, the court agreed and found the patient would require at least some degree of assistance for the remainder of his life, but this did not justify the expense of a permanent attendant. The court’s reduction of future anticipated necessary care to eight hours per day reveals how judges and juries evaluate the specific facts and circumstances of a medical malpractice action and craft resolutions to fit each case. Here, the court did not merely accept the plaintiff’s argument that he would need permanent care for the rest of his life; instead, the court considered expert opinions and tailored the damages to fit what the court believed would be necessary to provide for the plaintiff’s medical care. It is appropriate for defendant physicians and care providers, when faced with liability, to analyze the extent of the patient’s injuries, and to retain experts who are appropriately qualified to determine life care planning needs to supply judges and juries with this analysis.


  • Decided on May 13, 2020, in the United States District Court for the Southern District of Mississippi, Case Number 3:17-cv-00551.