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

Elena N. Sandell, JD

UCLA School of Law, 2018

News: An appeals court in Texas ruled the trial court did not abuse its discretion in denying the defendant’s motion to dismiss. The motion was filed by a physician defendant who alleged the plaintiff’s expert report was insufficient under Texas law. The appeal — the second one in this case — primarily addressed the sufficiency of plaintiff’s amended expert report.

The incident occurred in 2015 when the plaintiff underwent a routine laparoscopic appendectomy. Following postoperative complications, the patient underwent emergency surgery to remove parts of his colon and intestines, which had become necrotic. The plaintiff’s expert argued the physician was negligent in failing to perform an exploratory laparoscopic surgery the day after the appendectomy, when the patient presented complaining of increased abdominal pain, and a CT scan revealed several hematomas. The court of appeals ruled defendant’s claims had no merit, and affirmed the trial court’s decision. While the outcome of the case will be decided during trial, the extent of the plaintiff’s injuries, coupled with the detailed report offered by plaintiff’s expert, suggest the plaintiff will have a good chance to prevail in litigation.

Background: In July 2015, plaintiff underwent a standard laparoscopic appendectomy and was discharged the same day. After less than 24 hours, the patient returned to his doctor because he was experiencing pain. A CT scan revealed three collection areas of air, blood, and fluid. The physician prescribed pain medication and released the patient. However, the patient’s white blood cell count continued to elevate, and the patient returned in greater pain. This time, the patient remained under the physician’s direct care for three days and was given intravenous antibiotics.

Following the three days of care, the patient went home and spent the next days in constant discomfort. The patient returned to his physician a few days later. The defendant physician noticed the patient’s white blood cell count was significantly elevated. The patient was transferred to a nearby hospital where, the day after he was admitted, doctors performed an exploratory laparoscopy and installed a drain. Despite this, the patient’s condition continued to decline. Doctors performed an open abdominal exploration and discovered necrotic tissue and leakage of fecal matter into the peritoneum. The patient’s condition was so severe that it required major surgical intervention. Portions of the patient’s colon and intestines were removed, leading to intestinal discontinuity. The patient’s recovery required him to use an ostomy bag for six months before the remaining portions of his intestines could be reattached surgically.

In the lawsuit, the plaintiff alleges the physician was negligent during the three days of postoperative care, during which the patient was receiving intravenous antibiotics under the defendant’s care. Specifically, the plaintiff alleges the defendant failed to adequately monitor his condition and was negligent in failing to identify the source of his postoperative bleeding, which was evident from the CT scan.

The defendant’s appeal focused on the plaintiff’s expert report. In fact, the defendant argued that despite amendments, the plaintiff’s expert report presented deficiencies in explaining the standard of care at issue and in explaining the element of causation. Based on this, the defendant argued the trial court abused its discretion in denying his motion to dismiss. The court of appeals ruled that no such abuse of discretion occurred, and the case will proceed to trial.

What this means to you: Once again, the focus of the court’s decision rests in the sufficiency of the expert report. Here, the appellate court studied the plaintiff’s proffered expert report and found it addressed all the deficiencies highlighted by the court during the first appeal.

The plaintiff’s expert offered two separate standards of care that call for an exploratory laparoscopic surgery during the post-appendectomy care period. In fact, plaintiff’s main contention was the defendant physician was negligent in not performing a laparoscopic exploratory surgery upon noticing different hematomas in the CT scan. On this point, plaintiff’s expert explained if a patient presented with increasing pain and postoperative bleeding following an appendectomy, the standard of care would require the surgeon to perform an exploratory laparoscopic surgery to identify the source of the bleeding, verify the bleeding was not from the arteries that supply blood to the appendices, verify the integrity of the appendices, and evacuate the hematomas.

Second, plaintiff’s expert explained the increasingly elevated white blood cell count would have led a diligent physician to perform an exploratory laparoscopic surgery to identify the source of infection. The expert report also detailed how defendant’s conduct breached the applicable standard and what defendant could have done differently had he acted diligently. Specifically, the report alleged that after the CT scan showed internal bleeding, a laparoscopic surgery would have identified the source of the bleeding as the appendiceal artery and also would have identified any intestinal perforation. The plaintiff’s report added the observation of a pathologist who interpreted the CT scan and identified a “full thickness defect” near the appendectomy site. This observation, the court noted, supported the theory the leakage spot could have been identified via an exploratory laparoscopic surgery.

Lastly, defendant contended the report did not address the question of when the process of necrosis started. To this point, plaintiff’s expert stated that while it was impossible to know with certainty when necrotic tissue actually developed, there was a reasonable degree of medical probability the necrosis had developed between three to four days after the appendectomy. The court found this explanation satisfactory and ruled the amended expert report cured the deficiencies highlighted during the first appeal. Thus, the court of appeals found the defendant’s claims to have no merit and affirmed the trial court’s rejection of defendant’s motion to dismiss.

The extent of the plaintiff’s injuries during what is normally a routine surgery would suggest that if this case were to proceed to trial, plaintiff should be entitled to a substantial amount of recovery. In particular, the amended expert report sets forth the applicable standard of care and details how the physician should have acted to prevent the patient’s injuries. It is undeniable that a patient losing a significant portion of his intestines after a seemingly smooth laparoscopic appendectomy strongly suggests some level of medical malpractice. However, defendant may be able to offer expert testimony explaining how his conduct did not breach the applicable standard, although defendant’s conduct during the patient’s postoperative care appears to support plaintiff’s theory of liability.

This brings us back to the realization that patients know their bodies and physicians need to listen to their patients. Regardless of how often surgeons hear patients complaining about pain, whatever the cause, when the pain fails to respond to the first, second, and possibly even the third intervention, definitive action must be taken. Assuming it is “normal postoperative pain” is fine as long as it resolves within the “normal time frame” for normal postoperative pain. Otherwise, order definitive testing, look beyond the path of least resistance (because nothing will be on that path), call in experts who have handled similar problems before a trial is needed, or take the patient back to surgery and find out what has to be fixed. Take an expert with you so there is someone to intervene if things become rough. Do not stop until the patient is comfortable. It is not the responsibility of the physician to decide if pain is a real symptom. It is real to the patient, who matters most.


  • Decided Feb. 18, 2021, in the Fourteenth Court of Appeals for the State of Texas, case no. 14-19-00751.