News: A patient developed an abdominal infection following a laparoscopic abdominal surgery. The patient’s recovery was prolonged, and a subsequent exploratory surgery revealed a perforation in the patient’s intestines, as well as abdominal tissue damage. The patient filed a malpractice lawsuit against the initial physician.

After two mistrials, a third jury awarded the patient $109 million for her injuries, including loss of her hands and feet. However, the physician’s employer appealed, arguing it was improperly denied the ability to attribute fault to a third party, a critical care team. A three-judge appellate panel unanimously agreed, and ordered a new trial.

Background: A patient underwent a laparoscopic abdominal surgery to remove an ovarian cyst, performed by a gynecologist who specialized in minimally invasive surgery. The physician worked for a university hospital. After the surgery, the patient’s recovery did not progress normally. Due to the delayed recovery, the patient was admitted to a hospital for observation, and her condition worsened. She was transferred to the intensive care unit (ICU). Throughout her stay in the ICU, the physician and a critical care provider team followed the case jointly. They suspected the patient had developed an abdominal infection. The patient was put on antibiotics, and an exploratory surgery was performed to determine the source of the infection.

During the second surgery, physicians discovered a perforation in the patient’s small intestine. They also found the patient lost a significant amount of abdominal tissue to necrotizing fasciitis. After five months in the hospital, the patient was discharged to a rehabilitation facility. The patient filed a medical malpractice action against the physician, the hospital, and the university. However, the critical care team was not part of the litigation because the patient reached a separate settlement with them.

The patient alleged the physician perforated her small bowel during the original surgery and her injuries were caused by the perforation. Additionally, the patient argued the failure to timely diagnose her infection delayed the antibiotic treatment which, if administered earlier, would have prevented her injuries. The defendants denied liability, arguing the physician had not departed from the standard of care. They also argued the plaintiff’s injuries were a direct result of negligence of the critical care team that failed to timely administer the antibiotic treatment.

After hearing the evidence, the court dismissed the hospital and asked the jury to determine only the university’s liability. The university attempted to attribute liability to the critical care team, including on the verdict form. The plaintiff opposed this motion, and the court found in favor of the plaintiff. Two juries could not reach a verdict, resulting in mistrials. The third jury reached a verdict against the university, and awarded the plaintiff $109 million in damages.

The defendant university appealed, arguing the trial court incorrectly excluded expert witness testimony and incorrectly excluded the request to attribute liability to the critical care team. These two errors were related, as the proffered expert witness testimony attributed the patient’s injuries to negligence by the critical care team, rather than the university. The appellate court agreed, set aside the verdict, and ordered yet another trial.

What this means to you: This case reveals a possible method for defending against medical malpractice actions, as well as the importance of appealing erroneous decisions by the court. Although the patient’s injuries were clearly due to medical malpractice, the defendant’s main contention on appeal was the critical care team should have been included in the verdict, particularly considering assertions from the plaintiff’s expert witness. The defendant university alleged the physician did not deviate from the standard of care, and any alleged negligence of his did not cause the patient’s injuries. Instead, the defendant university argued the critical care providers failed to detect the infection and promptly start the antibiotic treatment, causing the necrotizing fasciitis and loss of abdominal tissue.

This is called the “empty chair” defense, whereby a named defendant seeks to attribute liability to a third party who is not included in the medical malpractice action. Here, the critical care providers had reached a settlement with the patient; thus, they were not active participants in the litigation. However, for the remaining defendants, this presents an opportunity to place fault on a party with no need to defend itself. Of course, such a theory must be based on the facts and circumstances of the case. Juries may be suspicious of defendants who have injured a patient but then try to divert blame to the empty chair. Nevertheless, it may actually be the case that the third party does bear liability, in whole or in part. Such arguments are appropriate to raise to the jury.

In this case, the defendants were prevented from presenting testimony of the plaintiff’s expert, who opined the failure to start antibiotic treatment in a timely manner caused the patient’s injuries. The timeline and procedure of this case is muddled, as there were two initial trials that ended with hung juries. Ultimately, the court refused to permit the plaintiff’s expert’s testimony. The defendants raised this issue on appeal, arguing it deprived them of a reasonable and valid defense concerning causation.

The care provider defendants additionally challenged the trial finding the physician acted negligently and injured the patient on two grounds. The first basis was this same argument: The plaintiff’s own expert witness testified the failure to administer antibiotics promptly caused the plaintiff’s injuries, not the physician’s actions. Second, by finding the physician was the original wrongdoer, the court inappropriately usurped the role of the jury by making a determination on a finding of fact (which should have been decided by the jury).

In fact, the defendant hospital argued that although a perforation in the patient’s small bowel was found, it had not yet been determined whether the perforation occurred during the laparoscopic abdominal surgery, during the second surgery, or at a different time. In other words, the court determined the physician had negligently perforated the patient’s intestines, thus precluding the jury to make this determination in light of the evidence.

The appellate court agreed with the defendant hospital and ordered a new trial. In support of this finding, the appellate court cited the position of another plaintiff expert, who testified that the perforation itself did not fall below the standard of care. Rather, the fact the injury went unnoticed and caused infection and necrosis breached the physician’s duty of care. Because the patient was in the care of a physician team after the surgery, including the critical care unit, the failure to notice the infection could be attributed to the negligence of all care providers who were involved in the patient’s postoperative care.

Perforation of abdominal organs during laparoscopic abdominal surgery is one of the possible risks of this type of surgery, as is infection. When perforated, the intestines release unsterile, bacteria-laden intestinal contents into the abdominal cavity, causing contamination and infection. Providing prophylactic antibiotic coverage is standard when perforations occur, are suspected, or any time a patient presents with postoperative symptoms that cannot be definitively attributed to another cause.

While this case remains unresolved, the defendant care providers will now have an opportunity to present evidence and testimony to support their arguments. Courts, judges, and juries are not infallible, which is why courts of appeal exist. In this case, the trial court made erroneous determinations, and the care providers were correct in pursuing a timely appeal to correct those errors. Appellate review can be a critical part of medical malpractice litigation, and care providers should carefully consider whether to proceed with that review process.


  • Decided on May 22, 2020, in the District Court of Appeal for the State of Florida, Second District, Case Number 2D18-1219.