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Court finds surgeon `anatomically' lost: case on point: Franco v. Latina, Rhode Island Superior Court 61-017-02 (2002). (Medical Law Case of the Month).

ISSUE: In this extraordinary Rhode Island case, a jury returned verdict in favor of a surgeon who had been sued for medical malpractice as a result of his failure to properly identify his patient's common bile duct and consequently cut the wrong biliary structures. Despite the fact that the surgeon erroneously identified the common duct as the patient's cystic duct, a jury returned a verdict for the defendant physician. What was the trial judge to do?

CASE FACTS: Linda Franco underwent gallbladder surgery which was performed by Dr. Joseph Latina. During the course of the surgery, Dr. Latina misidentified her common duct as her cystic duct. The patient brought suit for medical malpractice against Dr. Latina. Dr. Latina asserted that at the time of the operation, he used a surgical technique that, if followed correctly, allowed for "conclusive identification" of the cystic duct. He maintained that it was "only recently" that the medical community discovered that there was an "inherent flaw" in the technique that led to misidentification of the common and cystic ducts. After a trial before a jury in Providence County Superior Court, the jury returned a verdict for the defendant physician. The plaintiff moved for a new trial.

COURT'S OPINION: The court held, inter alia, that the role of a trial judge when reviewing a motion for new trial is well settled. The trial judge, sitting as an extra juror must "independently weigh, evaluate, and assess the credibility of the trial witnesses and evidence." The trial judge may also add to the evidence by drawing proper inferences. Upon determining that the evidence is evenly balanced or is such that reasonable minds, in considering the same evidence, could come to different conclusions, the trial judge must allow the verdict to stand, even if the trial judge entertains some doubt as to its correctness. However, if after making an independent review of the evidence, the trial judge concludes that the jury's verdict is against the fair preponderance of the evidence and fails to do substantial justice, the trial judge must set the verdict aside. The trial judge noted that the parties presented two very distinct theories. The plaintiff asserted that the evidence, including the testimony of the surgeon, established that the standard of care for a reasonably competent surgeon performing a laparascopic cholecystectomy in January 1996 required identification of the anatomical structures before proceeding to clip and cut any biliary structures. The plaintiff contended that the defendant failed to meet this standard of care when he erroneously identified the patient's common duct as her cystic duct. On the other hand, the surgeon asserted that at the time of the operation, he utilized a surgical technique that, if followed correctly, allowed for "conclusive identification" of the cystic duct. The plaintiffs experts testified, inter alia, that "the issue is you've got to identify everything 100 percent," you have to proceed carefully, identify the anatomy and be 100 percent sure what you are going to clip and divide."

LEGAL COMMENTARY: After reviewing all of the expert testimony, the court found that it was the defendant's very own testimony that best supported the theory that the surgeon failed to meet the applicable standard of care. The court cited the following exchange which indicated that the defendant failed to conclusively identify the critical anatomical structures: "Q: Now isn't it tree, Dr. Latina, that the bottom line of what the doctors who are experts in this particular field and in this particular procedure were advocating beginning in 1990 and through today ... is the conclusive unmistakable identification of the structures that are supposed to be cut safely in a procedure like this? A: Correct. Q: And isn't it tree that doctors ... published articles which contained recommended methods by which the doctor could, and hopefully would, conclusively identify the vital structures, cystic duct, cystic artery in this procedure? A: Yes." The trial judge seized upon Dr. Latina's admission that he was supposed to do whatever was necessary to conclusively, unmistakably isolate and identify the cystic duct. The court focused on the fact that he readily acknowledged that he "did not do so in this case! He stated, inter alia, "I was ... I misidentified the cystic duct or I misidentified the common duct as the cystic duct." The court concluded that the surgeon's own testimony indicated that he knew the standard care required to ensure that he properly identified the anatomical structures involved. The court concluded that the surgeon admitted that he was "anatomically lost."
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Article Details
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Author:Tammelleo, A. David
Publication:Medical Law's Regan Report
Article Type:Brief Article
Geographic Code:1U1RI
Date:Mar 1, 2002
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