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Bile duct cut by 'mistake' during gallbladder surgery.

CASE ON POINT: Franco v. Latina, No. 2006-146-Appeal (R.I. 03/05/2007) A.2d -RI

ISSUE: In this extraordinary Rhode Island case, a patient's suit against a physician for medical malpractice resulted in two jury verdicts for the physician. Both verdicts were overturned. A jury then awarded the patient over $500,000! How did this happen?

CASE FACTS: On two occasions in January 1996, Linda Franco experienced pain described as "severe pain in my right side radiating around up into my back." After the second episode, she saw her primary care physician who scheduled her for an ultrasound. Test results revealed that she had gallstones. After the patient was told she needed surgery, she saw Dr. Joseph Latina (who had treated her in the past). On January 29, 1996, Dr. Latina informed the patient that her gallbladder had to be removed. Dr. Latina assuaged his patient's concern that the procedure might interfere with a planned automobile trip to Florida. Dr. Latina assured the patient that since he was going to perform a laparoscopic cholecystectomy, a very short recovery, period would follow and there would be no need to postpone the trip. The procedure was performed. Assuming that the surgery had gone well, and having no reason to believe otherwise, the patient and her husband departed for Florida by automobile as planned. Throughout the trip, Franco did not "feel quite right." Further, she began to notice that her skin and eyes looked a little yellow or jaundiced. However, she attributed it all to sequelae from the procedure she had undergone. When the patient arrived in Florida she went to the emergency room at Sarasota Memorial Hospital. Tests there revealed that she had a blockage in her binary system. Dr. Douglas Kuperman and Dr. James Brock concluded that the patient's common bile duct had been cut by mistake during the laparoscopic cholecystectomy performed by Dr. Latina. After undergoing reconstructive surgery, by another surgeon upon her return from Florida, the patient filed suit against Dr. Latina for medical malpractice. After a ten day jury trial, the jury returned a verdict for Dr. Latina. However, the trial judge, after noting Dr. Latina's admission that he had cut the wrong duct, ordered a new trial for the patient. The new trial commenced on February 14, 2006. Again, the jury returned a verdict for Dr. Latina. The trial judge, albeit a different trial judge, entered Judgement Notwithstanding the Verdict (JNOV) for the patient. The trial judge then directed the jury to assess the amount of damages to be awarded to the patient. The jury awarded the patient $525,000 in damages. Dr. Latina appealed.

COURT'S OPINION: The Supreme Court of Rhode Island affirmed the award of damages against Dr. Latina. The court rejected Dr. Latina's contention that the trial judge erred not only by entering JNOV for the patient, but by ordering the same jury that had rendered its verdict in favor of Dr. Latina to assess damages to be awarded to the plaintiff. Further, the court rejected Dr. Latina's contention that the jury was motivated to award a higher amount of damages to the plaintiff since the trial judge had overruled them. The court found that this argument was specious, at best. Dr. Latina cited no authority for that proposition.

LEGAL COMMENTARY: The court rejected the defendant's contention that the trial judge improperly struck the opinion testimony of Dr. Ferguson in which the defense expert opined that Dr. Latina was not negligent when he did the laparoscopic cholecystectomy. In the Course of direct examination, Dr. Ferguson first testified that he "objected to the concept of a standard of care." Later, when asked "what was the standard of care when performing the infundibular technique in the removal of the gallbladder..., " he responded that "it would be to identify the cystic duct and the cystic artery, [and] to clip and divide the cystic duct and cystic artery ..." On cross-examination, Dr. Ferguson was asked whether he agreed that the patient's injury was the result of Dr. Latina's missidentification of the cystic duct, and Dr. Ferguson responded in the affirmative. At that point, the patient's attorney moved to strike the portions of Dr. Ferguson's testimony that offered the opinion that Dr. Latina acted within the standard of care and was not negligent because Dr. Ferguson's opinion as to negligence did not coincide with an articulated standard of care for the procedure. Dr. Latina countered that Dr. Ferguson was a qualified expert and that his opinion should not be stricken but rather was entitled to be weighed by the jury. However, in her decision to strike Dr. Ferguson's testimony, the trial judge delivered a detailed rationale lot her ruling. In substance, she perceived Dr. Ferguson's opinion that Dr. Latina's misidentification was not negligent because it was evidence of human error. The trial judge correctly concluded that basis lot an opinion as to the non-existence of negligence, or an opinion as to whether there was a deviation from the standard of care, was not responsive to the underpinnings of what the standard of care requires. Although it is true that an expert witness can render an opinion, the witness must, nevertheless, set forth a basis for that opinion.
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Title Annotation:Medical Law Case of the Month
Author:Tammelleo, A. David
Publication:Medical Law's Regan Report
Date:Mar 1, 2007
Previous Article:Failure to diagnose pregnancy: baby survives D & C.
Next Article:IA: dystocia, emergency section, death results: jury verdict for obstetrician upheld on appeal.

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