Unnecessary and Contraindicated Liver Transplant

Filed under Surgical Errors

The Culver Cases

In these two consolidated cases, we represented two brothers, Peter and Tim Culver, in their lawsuits against a Hospital and surgeon based on an unnecessary and contraindicated live liver transplant. One brother was the donor (Tim) and one brother was the recipient (Peter).

The Background:

As we investigated this case, we discovered that although the Defendant Hospital once dominated the lucrative business of liver transplants, as the procedure grew more common, competition from other hospitals eroded its monopoly. In an aggressive bid to reclaim its leadership, the Hospital hired an Argentinean surgeon who promised to drastically increase the number of live liver transplants that the Hospital performed. As a result, the Hospital offered this surgeon a $500,000 yearly salary plus “additional incentive payments”.

Although living donor operations in the United States had been declining since 2001, the living donor operations surged at the Hospital under the leadership of this surgeon. The Hospital transplant program is a source of both profits and prestige that the Hospital leverages to attract star doctors and build its other businesses, which include a health-insurance arm. Hospitals charge $400,000 to $500,000 for a liver transplant. The Hospital’s transplant program produced $130 million of revenue in the latest fiscal year related to this lawsuit.

It was also discovered that although this surgeon delivered on his pledge, in doing so, he resorted to practices that his colleagues found questionable. The Defendant Hospital adopted new guidelines for potential surgical candidates of its live liver donor transplant program that were far more aggressive than those previously used by the Hospital or any other transplant program in the country. It was also discovered that the Hospital transplant team would urge family members to donate livers to relatives. Further, the surgeon had been criticized by former Hospital doctors for unnecessary deaths and complications due to his aggressive liver transplant practices. According to multiple credible sources, the Hospital’s former head surgeon and longtime former director of that program started to become aware of high significant complication rates associated with the Hospital’s live liver donor transplants; however, the Hospital blocked dissemination of this doctor’s findings.

Furthermore, a published study by the European Journal of Hepatology showed a high rate of serious complications in live-donor liver transplants at the Defendant Hospital versus liver transplants taken from cadavers (the Defendant surgeon performed all the surgeries cited in the study). A liver transplant surgeon at the Baylor Regional Transplant Institute in Dallas and past president of the American Society of Transplant Surgeons was quoted as saying, “I think the study’s authors are addressing a local problem in Pittsburgh that everybody knows about, but they also are bringing out the whole issue that we need to be careful and not just charge ahead and let cowboys do this procedure.”

Shortly before the filing of these lawsuits, the Hospital finally asked the surgeon to resign. Since the surgeon left, the number of living donor liver transplants has plummeted. 4 live-donor liver transplants were done at the Hospital the following year - down from a record high of 36 each in the previous two years.

The Facts:

In July, Peter Culver was diagnosed with end stage liver disease secondary to primary sclerosing cholangitis and was told that a liver transplant could benefit his health.

Peter’s brother, Tim, and his sister, Amy, both volunteered to undergo testing to determine whether they were appropriate candidates to be a “live liver donor.” Tim was evaluated at the University of Nebraska Liver Transplant Program; however, Tim was disqualified due to concerns about his liver’s lobe sizes. Amy was evaluated by Cedar Sinai Medical Center; however, Amy was disqualified for an unspecified vascular anatomy issue.

In late February/early March, Tim contacted the Defendant Hospital to get a second opinion and to determine if it had more experience than the Nebraska program. Tim advised the Defendant Hospital of his disqualification in Nebraska, had his medical records from Nebraska forwarded to the Defendant Hospital, and asked if the Defendant Hospital would be interested in testing him. In turn, Tim was told by the Defendant Hospital’s transplant coordinator - that the experience of the their program permitted it to qualify potential donors who were not suitable candidates at other facilities such as Nebraska.

In March, Peter was listed on the Defendant Hospital’s transplant list and falsely led to believe that receiving a transplanted liver from a living donor was equal to or better than receiving a liver from a cadaver.

On April 30, Tim underwent an expedited screening for the surgery at the Defendant Hospital, including a liver biopsy. The testing demonstrated findings which would have made Tim an unsuitable candidate absent the Defendant surgeon’s and the Defendant Hospital’s “expanded criteria.” (This “expanded criteria” was unknown at the time to both Tim and Peter.)

The surgery was scheduled for the very next day, May 1, to be performed by the Defendant surgeon. While in the Operating Room prior to removal of the donor organ, an intraoperative cholangiogram (an x-ray of sorts) demonstrated that Tim had a liver anomaly; however, despite the worrisome results of the previous tests and despite the worrisome results of the intraoperative cholangiogram, the Defendant surgeon negligently and with reckless indifference to Peter and Tim proceeded with the live liver donor surgery.

Making matters worse, during the surgery on Tim to remove the liver, the Defendant surgeon severed Tim’s common bile duct (wrong organ) and, inexplicably, failed to repair it. Since then, Tim has had digestive problems and a series of surgeries and other doctor and hospital encounters.

Following the surgery, Peter returned to California for recovery; however, since the surgery, he has experienced and will continue to experience severe complications associated with his liver transplant.

Since Peter had a MELD score of 17 and was not in dire need of a transplant, he could have remained on the transplant list for a cadaverous liver, but due to what he and Tim were told at the Defendant Hospital, Peter unknowingly subjected himself to the risks of receiving a liver from a living donor. Moreover, Peter also unknowingly subjected himself to the risks of receiving a liver from a living donor that should not have been qualified to be a liver donor.

Despite the exercise of reasonable diligence, both Peter and Tim Cullen’s awareness of the much increased risk of complication from live liver transplants and the awareness of Tim not being a suitable live liver donor did not become known to them until the publication of an article in the Wall Street Journal documenting the background of the Hospital’s live liver transplant program as discussed above.

Damages as to Peter Culver

At the time of suit, Peter was 46 years-old, married 20-years, had two daughters ages 15 and 10, and lived in California. He was the recipient of the liver transplant.

Peter was highly educated. He received dual Bachelor Degrees in Economics and Psychology from UCLA in 1987. He then received his MBA in Finance and Marketing from Loyola Marymount University in 1990. He was employed as an Executive Vice President and General Manager of a television network. Peter was terminated from employment due to what his company believed were excessive absences due to his health condition and his inability to travel for extended periods of time (all a result of the botched liver transplant).

He continued to suffer from recurrent cholangitis episodes and blockages of his primary bile duct. These episodes have been occurring approximately every 30 days since his bile duct reconstructive surgery was performed at the Defendant Hospital. This condition results in intense body aches and pains, skin itching, extreme hot to cold body temperature variations, and total disablement. He has been undergoing endoscopic cleaning, stretching, and stenting of his bile duct at regular three to four month intervals, since the major bile duct reconstructive surgery was performed in an attempt to correct the original bile duct problem.

Peter has suffered from esophageal varices with bleeding from his throat, a strong acid reflux condition, and the need for powerful beta blocker medication to prevent future damage from the varices. This medication renders him tired, listless, fatigued, and has produced adverse sexual side effects. Due to continued high doses of prograf, beta blockers, actigall (bile thinner) and other prescribed medications, Peter has constant nausea, headaches, insomnia, back pain, stress, and anxiety. Simple colds typically remain for many months before retreating. This prolonged state of poor health has resulted in depression and anxiety, causing Peter to seek ongoing psychological counseling.

His abdomen has never fully healed following his bile duct reconstruction surgery. He was left with a large hole from an “open wound healing” that did not properly close. He had to undergo twice daily cleaning and stuffing of this hole (approximately three inches in diameter) for a period of six months. The wound then became overgrown with a granuloma and required multiple burning treatments with silver nitrate. A surgical repair was completed; however, he still has abdominal weakness and constant pain from the procedure. He has been left with a large protruding bungle across his abdomen and his stomach muscles are no longer able to support normal movements (sitting up or twisting/extending).

Peter’s current treatment regimen consists of 2-4 major hospitalizations and surgeries per year in an effort to keep him well enough to avoid another liver transplant. Peter and his physicians consider whether this course, with its attendant poor quality of life, should be abandoned in favor of permitting Peter’s condition to lapse to the point where he is a candidate for a cadaverous liver. If that course is eventually pursued, Peter will undergo another liver transplant; and so his “future medical expenses” will be the cost of the liver transplant, approximately $600,000, and yearly maintenance expense of approximately $50,000 per year.

Sports and fitness were a very important part of Peter’s life, and the relationship he shared with his wife and daughters. Peter was very active in sports and fitness competitions; this was a very significant part of his life. He played tennis multiple times per week, played in company basketball leagues and in weekend games with friends. He played golf on a monthly basis with friends. He ran daily (approximately 3 – 5 miles) to maintain cardiovascular health. He entered and participated in a variety of charity 5K and 10K runs (approximately 2 per year). He participated in the Los Angeles marathon each year from 1997 through 2005, completing the course with his wife, who also participated on each occasion. He played beach volleyball with friends during the summers on a weekly basis. He played in the company softball, basketball, and volleyball leagues. Peter and his wife consistently belong to health clubs throughout their relationship and marriage, working out together for strength training purposes as a shared activity.

Since the transplant and related complications, Peter has not performed physical activities greater than simple walking or a short attempt at bike riding.

Damages as to Timothy Culver

Tim was 43 years-old, had an 11-year old daughter, and lived in Washington State. He is the donor of the liver transplant.

After graduating high school, Tim received his Federal Aviation Administration Airframe and Powerplant license in 1988. Tim is employed by an airline as a Lead Avionics Technician (repair and maintenance of aircraft electrical and electronic equipment). Tim is also an elected Union Representative for the Aircraft Mechanics Fraternal Association (“AMFA”).

Following the surgery, Tim worked two days a week, one day on, two days off for several months. After that time, there have been sporadic incidents where he was unable to go to work and confined to bed due to subsequent surgeries and acute incidents of chronic pain. In all, he was required to use 575 hours of sick leave and vacation to cover time off due to complications from the donation in the first year alone.

The initial injury left scar tissue and adhesions that resulted in scarring and severe chronic abdominal pain for which no relief is forthcoming. The effects of this pain are such that Tim is unable to live life and enjoy activities as he did prior to surgery. The medication to relieve the chronic pain also affects his daily activities. Due to the safety sensitive nature of his job, Tim must be very cautious regarding how he chooses to address the constant pain as not to obscure judgment. Because of the uncertain nature and unpredictability of his digestive system, Tim is unable to plan activities without this issue being at the forefront. In addition, as a result of these issues, he has had repetitive abscesses and anal fissures which are excruciatingly painful, have already required surgeries and require constant monitoring.

Tim’s treating physicians have informed him at numerous in-patient visits that there will be chronic abdominal pain.

Additionally, as a result of the surgery, Tim has a large incision scar across his abdomen approximate lateral dimension is 30”, vertical dimension is 8”. He also has a large protrusion on right side of abdomen approximately 10” long x 3.5” wide. These are both permanent. The protrusion is noticeable through clothing.

Prior to the transplant surgery, Tim participated in kayaking, mountain biking, and motorcycle riding with family and friends. He has been virtually unable to enjoy any of his former hobbies due to the chronic pain and fatigue on a daily basis.

The Lawsuit

Following the filing of Complaints and Interrogatories on behalf of the Plaintiffs, the case was transferred to a Judge that handles all civil cases that are designated “complex” in their nature. Thereafter, this litigation consisted of numerous court appearances initiated by our firm to compel discovery. What we were seeking were essentially the documents necessary to establish the facts set forth in The Wall Street Journal article referred to above. The Defendants resisted nearly all requested discovery. Ultimately, the Judge granted virtually all of the Plaintiffs’ Requests to Compel, despite numerous motions by the Defendants to consider and reconsider unique bases to justify their refusal to produce anything.

Additionally, we sought Court approval to take the deposition of the Defendant’s former head the transplant program (an internationally renowned pioneer in transplant surgeries). This was important as this surgeon was very critical of the direction that the Defendant Hospital’s transplant program had taken under the directorship of the Defendant surgeon; and he sought to publish research that he did on the Defendant Hospital’s live liver transplant program in The New England Journal of Medicine. When the Defendant Hospital learned of this, it attempted to block this publication. Tension between the Defendant Hospital and its former head surgeon reached a point where the surgeon was not even permitted access to the Defendant Hospital Transplant building named for him. Over the Defendant Hospital’s objections in this case, the Judge granted our Motion to take the surgeon’s deposition. The Defendant Hospital appealed this decision to the Pennsylvania Superior Court. We then filed a Motion to Quash this Appeal as premature and frivolous which was granted by the Superior Court.

Thereafter, in response to our discovery requests, the Defendant Hospital filed a “Privilege Log” pursuant to the Judge’s Order. The Privilege Log purported to set forth why numerous documents authored by high ranking Hospital officials, including its CEO, were not discoverable by reason of Pennsylvania’s Peer Review Protection Act, even though the Judge already preliminarily indicated from the Bench that by his interpretation of the Peer Review Act, the Hospital’s reliance on The Act to thwart discovery in this case was misplaced. The Judge ultimately appointed a “Special Master” to preside over the discovery disputes; however, shortly thereafter, the case resolved with a multi-million dollar settlement.

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Publisher: Harry S. Cohen and Associates, P.C.