The Ventura Case
A patient went to the ER with a perforated ulcer in his small intestine, which is a surgical emergency. However, a resident radiologist misread a CT scan and diagnosed possible gallstones instead which is not a surgical emergency. As a result, there was an initial 1 day delay (from Saturday to Sunday) until the CT was re-read and the error was caught. Then however, the Defendant surgeon put off surgery for an additional day (from Sunday to Monday). Following surgery, the patient became septic and ventilator dependant and remained under the care of the Defendant surgeon for 25-days until he died. The immediate cause of death listed on his Death Certificate is “Complications of gastric perforation.” The patient was 58 years old when he died. He was employed in the Pittsburgh Public Schools as an elementary school gym teacher and football coach for 32+ years.
Saturday, December 19
On 12/19, a Saturday, Mr. Ventura presented to the ER around 4:37 pm with complaints of “belly pain”. It was documented that the pain began around 4:00 pm, before dinner, and was 10/10, sharp, band-like pain radiating to the right upper quadrant associated with nausea, vomiting, and tenderness.Morphine was given in the ER which helped resolve the pain. It’s documented that Mr. Ventura was short of breath (due to abdominal pain), had left arm pain, neck pain, and was diaphoretic. Vitals included BP 138/83, pulse 16, RR 20, temp 36.6. The documented abdominal exam notes: Soft, nondistended, bowel sounds present, diffuse tenderness in epigastric and RUQ area.
Abnormal labs included: WBC 12.5, neutrophils 78, neutrophils absolute 9.74, HGB 13.8, MCHC 32.5, MPV 11.2, glucose 131, BUN 30, and ALT (SGPT) 17. (See labs at #2)
Stat CT scans of the chest and abdomen were ordered in the ED; they were performed at 7:28 pm. Since it was the weekend, no attending radiologist was present so the images were read by a resident radiologist. The resident’s impression, documented in a “sticky note” at 7:45 pm, was
“Mild pulmonary edema, mild cardiomegaly, postoperative changes of cardiac surgery, including valve replacement. No pleural effusion. No PE. Cholelithiasis, mild ascites. Gastric diverticulum? No bowel obstruction.” ).
Based on the resident’s interpretation of the CTs, Mr. Ventura was admitted for “likely cholecystitis” under the care of an internist resident who was in the hospital and and attending internist who was called by internist resident. The plan was to perform a RUQ ultrasound in the morning to evaluate Mr. Ventura’s gallbladder.
Sunday, December 20
Abnormal labs timed at 6:00 am include: WBC 22, HGB 13.7, MCHC 32.4, MPV 12.1, neutrophils 78, neutrophils absolute 10.76, bands 38, bands-abs 8.34, lymphocytes 5, monocytes-abs 1.54, glucose 199, BUN 38, Albumin 3.3, AST (SGOT) 13, ALT (SGPT) 17, and hemoglobin 6.6. A chest x-ray performed in the ER on the 19th noted “no pleural effusion”; however, a chest x-ray performed on the 20th noted “possible small left pleural effusion.”
Mr. Ventura was first seen by the attending internist at 9:00 am. In his note, the attending internist essentially documented the findings from ER. He also noted upper abdominal pain with inspiration, tachypnea, and suprapubic pain with cough. Positive sweats. No change in bowel habits. Deep breath but no dysuria or hesitancy. No change in urine flow. Thirsty. No cough. SOB secondary to pain on deep inspiration. The attending internist also noted mild distress. Tachypnea 28 to 32. 150/66. Pulse 82. Temp 37.6. Lungs decreased breath sounds, right base, dull, core, regular distant. Abdomen was soft, tender epigastrium and RUQ. No rebound. No clubbing, cyanosis, or edema. Some of the labs that he noted included a WBC from 12.5 on admission to 22 with 38% bands. The attending internist, going on the resident radiologist’s reading of the CT, planned a RUQ ultrasound and wrote a consult to the Defendant surgeon for the cholecystitis (the attending internist testified that he thought that consult would take place sometime later in the afternoon since it wasn’t an emergent situation). In addition to a possible gallbladder issue, he testified that he was concerned with a possible pneumonia.
Less than an hour after the internist’s exam, Mr. Ventura was seen by a resident internist, “Dr. Z”, at 9:50 am. Dr. Z noted that Mr. Ventura was in mild distress with some continued nausea, that his abdomen was tender to palpation in the epigastric/RUQ location and was positive for guarding. Vitals were BP 15/80, pulse 82, RR 22, temp 37.6. Dr. Z noted that the RUQ ultrasound and chest x-ray were pending, a surgical consult had been made, and that Mr. Ventura’s pain had been controlled with Dilaudid. Dr. Z also noted that the WBC went from 12.5 on admission to 22.
Around noon that same day, an attending radiologist, per routine, reread all of the images from the previous night that the resident read. In doing so, the attending radiologist noted a “discrepancy” in the resident’s read, noted that he found “free intraperitoneal air in the upper abdomen with wall thickening of the distal stomach and mild fat stranding” and called the floor to pass on his findings. He then spoke to “Nurse V”, who in turn told Dr. Z (the internist resident) who told the attending internist. The attending internist then had Dr. Z contact the surgical team directly to tell them about the finding of free air.
The surgical team consisted of a 2nd year resident (“R2”), a 1st year resident (R1), and the Defendant surgeon. The R2 and R1 were in the hospital. The Defendant surgeon was rounding on patients at 3 other hospitals that morning.
The R2 saw Mr. Ventura and made two notes in the chart: an untimed progress note and handwritten orders timed at 1:00 pm. In his progress note, the R2 noted that Mr. Ventura was in mild distress, that his abdomen was soft, tender to palpation across the epigastrium, especially on the right, positive guarding, no rebound. He also noted the WBC change from 12.5 on admission to 22. The R2 also documented a 6-point assessment and plan: (1) plan for OR in am; (2) serial exams; (3) type and cross; (4) continue antibiotics; (5) consult was initially for cholecystitis which is unlikely given final read of CT – cancel RUQ ultrasound; and (6) strict in and outs. The R2’s orders, timed at 1:00 pm, on a different page in the records were: (1) type and cross 2 PRBC for OR; (2) strict ins and outs; (3) cancel RUQ ultrasound; and (4) NPO.
Also at 1:00 pm, Mr. Ventura signed a Consent for surgery (witnessed by the R2). A Consent for Anesthesia was signed at 1:48 pm. Also, a"Pre-Operative Checklist” was completed on the 20th.
Mr. Ventura was placed on the surgical schedule for 10:00 am the next day (Monday the 21st).
There are no notes in the record from the Defendant surgeon; however, there is a nursing note timed at 1:30 pm stating…
“Patient for surgery in the am – discussed with patient. Drs. [R1 and the Defendant surgeon] discussed with patient – all questions and concerns addressed.”
In an Interrogatory Answer, the Defendant surgeon stated that he arrived at the hospital on the 20th at approximately 1:30 pm.
There aren’t any other physician progress notes written on the 20th.
Monday, December 21, 2009
Abnormal labs timed at 6:00 am include: WBC 23.2, HGB 12.7, HCT 39.5, MCHC 32.2, MPV 12.3, bands 51, bands-abs 11.82, lymphocytes 2, lymphocytes-abs 0.46, monocytes-abs 2.09 (a basic blood chemistry with glucose, BUN, etc. is not found in the chart for this day).
At 6:00 am, “Dr. W”, a different 2nd year surgical resident, examined Mr. Ventura and wrote a progress note. Dr. W documented that Mr. Ventura felt better. She listed vitals of: BP 132/88. Pulse 88. Temp 38.8, and noted glucose 165-295. Abdominal exam noted soft, obese, nondistended, and nontender. This note also references that surgery is scheduled for 10:00 am later that morning and that anesthesia would be in to see the patient.
“Dr. T”, a 4th year surgical resident, wrote a note below Dr. W’s note and documented that Mr. Ventura was still tender in the epigastric area but felt better. She also noted, “Will proceed to OR given CT scan finding of free air; working diagnosis is a perforated ulcer.” Although this note is untimed, the resident internist testified that it would have been written prior to his 6:30 am note (discussed below).
The resident internist also documented an exam at 6:30 am. He noted that Mr. Ventura was more comfortable and going to the OR due to possible perforation. He documented vitals of: BP 132/88, pulse 88, RR 20, temp 38.2. He noted the patient to be in mild distress. Abdominal exam: Tender to palpation, decreased bowel sounds, increased tenderness to palpation in the midepigastric/RUQ region, positive guarding, no rebound. Trace edema was noted on extremities exam. It was also noted that the WBC again increased to 23.2.
There is a nursing note timed at 8:35 am noting that Mr. Ventura was being taken to the OR via stretcher on a monitor and on oxygen (6 liters).
There are no notes from the Defendant surgeon in the chart prior to his operative report.
In an Interrogatory Answer, the Defendant surgeon claimed that he arrived at the hospital on the 21st at approximately 8:45 am (recall surgery was scheduled for 10:00 am).
Regarding surgery, it is noted that the incision time was 10:18 am. The Defendant surgeon performed an exploratory laparotomy, biopsy of ulcer, and Graham patch. In the operative note, he described a pyloric channel perforation. He noted,
“Attempt at primary closure with the Graham patch over it was made but the tissue was not healthy enough to allow for stitches to pull shut; therefore, standard Graham patch was produced …”
He also noted
“there was a lot of leakage from the stomach through this pyloric ulcer throughout the case until it was closed.”
Postoperatively, Mr. Ventura experienced sepsis, acute renal failure, pulmonary insufficiency, and perisplenic abscess requiring drainage. He became ventilator dependant and required a tracheostomy. He remained under the care of the Defendant surgeon in the hospital until January 15 (25-days after surgery) when he was discharged (still under the care of the Defendant surgeon) to Life Care Hospital (he was still ventilator dependent and critically ill). However, shortly after being transferred into the ambulance for transport to Life Care, Mr. Ventura suddenly went into cardiac arrest. The ambulance personnel started CPR; however, since the ambulance had only gone a short distance, they turned around and returned to the hospital. CPR was continued in the ER until Mr. Ventura was pronounced dead at 7:35 pm. The “immediate” cause of death listed on his Death Certificate is “complications of gastric perforation.” No “underlying” cause of death is listed. “Contributing factors” listed are coronary artery disease and hypertension. The Defendant surgeon was asked to sign the Death Certificate but he refused to do so.
Therefore, in summary, there was a CT that showed free air as of 7:45 pm on the 19th. It was correctly read at noon on the 20th. Surgery wasn’t performed until 10:18 am on the 21st. The patient died from complication of gastric perforation.
We filed suit on behalf of patient’s family against the hospital and the surgeon. We deposed all of the residents, the attending radiologist, the attending internist, and the Defendant surgeon. The Defendant surgeon’s defense was incredible.
The Surgeon’s Story
In his Interrogatory Answers and in his deposition:
- He claimed by the time Mr. Ventura’s CT was properly read on the 20th and when the surgical team saw him, about 20 hours after the perforation, the perforation definitely sealed itself off. He claimed he then presented Mr. Ventura with two options: (1) perform surgery or (2) try non-operative management of the perforation
- He claimed he didn’t recommend one option over another, although he admitted that a non-operative approach was “unusual”, that he has never attempted it before, and that Mr. Ventura had risk factors against it such as age (58), being a diabetic, and a being a smoker.
- He claimed it was Mr. Ventura who decided to try the “unusual” non-operative approach to the perforation.
- He claimed that he only put Mr. Ventura on the surgical schedule for Monday morning (the 21st) “just in case” Mr. Ventura’s condition declined and he needed to operate (even though he acknowledges that he could’ve always called a STAT surgery).
- He claimed that he documented this significant and unusual decision of a non-operative approach in a progress note on the 20th that was mysteriously missing from the medical records.
- He claimed that a decision to operate only came on Monday morning (the 21st) after he examined Mr. Ventura, and although Mr. Ventura’s condition remained basically the same, he claimed that Mr. Ventura didn’t improve enough so he made the decision to operate.
- He claimed that this decision to now operate on the 21st was a significant event; however, he somehow never thought to document this exam or this new decision to operate anywhere in the medical record.
- When confronted with the fact the entire medical record doesn’t support his claim that a non-operative approach was ever being attempted, he claimed that all of the other doctors and nurses were under the wrong impression simply because he put Mr. Ventura on the surgical schedule on the 20th (he claims that he just never told anyone that it was a “just in case” scheduling).
- He claimed to recall, years later and after 1,000+ surgeries later, that he found the perforation sealed off during surgery. When asked why he didn’t note this in his operative report where he is supposed to note in detail what he found, he testified, “Because I’m not Charles Dickens.”
- When asked if he could point to one note in the medical records to support his claim that a non-operative approach was being taken, he pointed to the order for “serial exams” by the R2. That’s it. He then testified that they would only order serial exams on a patient in which a non-operative approach was being taken. This made no sense. In fact, the R1 testified that serial exams would be done on a patient like Mr. Ventura with surgery scheduled for the next morning to determine if they needed to perform surgery sooner.
- He did testify that if the CT scan would have been read properly on the 19th and he was told about the finding of free air on the 19th, he would’ve operated on the 19th (thus avoiding a situation where a decision to delay surgery could’ve been made on the 20th).
- Conveniently however, he then testified that he still thinks Mr. Ventura would still have suffered the same infection and death if the operation occurred on the 19th. In fact, he testified that the infection that Mr. Ventura ended up with had nothing to do with a roughly 40 hour delay in surgery, it was just a “risk of the surgery” type infection that Mr. Ventura conveniently acquired during the surgery.
- When asked why he wouldn’t sign the Death Certificate even though he was the attending physician, the physician whose care Mr. Ventura was released under, and the hospital staff asked him to, he incredibly testified that he only refused to sign it because he didn’t witness Mr. Ventura die.
The ironic thing was even his claim about a non-operative approach and a decision to operate on the 21st doesn’t make sense in and of itself. He testified that he didn’t operate on the 20th because: (1) Mr. Ventura said he felt better; (2) his vitals were stable; and (3) he only had localized pain. Yet the next morning, on the 21st, (1) 3 different residents document that Mr. Ventura felt better/more comfortable; (2) his vitals remained essentially the same as the 20th; and (3) Mr. Ventura’s findings on physical exam were essentially the same as the on the 20th. Therefore there would’ve been no reason to switch from a non-operative approach to an operative approach. Also, he testified that a non-operative approach was indicated on the 20th because Mr. Ventura was “stable”; although he then admitted that operating on a patient when they are stable is the optimal time to operate (i.e. you don’t want to wait until they are unstable).
- The resident radiologist testified that he was required by the hospital to work 24 hour shifts which made him extremely fatigued, but that the residents preferred to work a 24 hour shift as opposed to a 12 hour shift so they worked less days.
- The resident radiologist also testified that he would sometimes be required to view over 30,000 images per shift.
- The surgeon testified that he was never concerned about an infection prior to surgery despite Mr. Ventura being a diabetic, age 58, having a temperature that increased since admission, an abnormally high WBC count that continued to increase since admission, 38 bands, decreased breath sounds, a glucose level that was increasing, an elevated RR, a possible pleural effusion on chest x-ray, etc. Moreover, he acknowledged that Mr. Ventura met the criteria for SIRS on the 20th.
- On the morning of the 20th at 6:00 am and 6:30 am, 3 different residents (2 surgical and 1 internist) document a conversation they had with Mr. Ventura where he told them he “felt better” or “more comfortable”. All 3 residents then documented that surgery was scheduled for later that morning at 10:00 am. Thus, we know all 3 doctors talked to Mr. Ventura and all 3 were still under the impression that a decision for surgery had already been made the day before.
- Dr. Z, the internist resident, testified that he was under the impression that Mr. Ventura was definitely being operated on at 10:00 am (before the surgeon claims to have even made that decision). Dr. Z also testified that nothing in the chart suggests a non-operative approach was ever being taken or that Mr. Ventura was placed on the surgical schedule ‘just in case’.
- The attending internist, testified that he was told on the 20th, by his residents, that the plan was for Mr. Ventura to have surgery the next morning.
- Mr. Ventura’s sister testified that: (1) Mr. Ventura told her over the telephone on the afternoon of the 20th that he was going into surgery the next morning on the 21st; and (2) she visited Mr. Ventura on the evening of the 20th and they had more conversations about how Mr. Ventura was having surgery the next morning.
- The R2 surgical resident testified that the plan “OR in the am” would have come after a phone call with the surgeon (which was evidence that this plan was put into effect before the surgeon even got to the hospital).
- The R2 surgical resident testified that there are no notes in the chart documenting that any “serial exams” were done on the 20th per his order. He also testified that urine wasn’t monitored like it should have been per his order.
- The R2 and R1 (surgical residents) both testified that they read the surgeon’s Interrogatory Answers (giving the surgeon’s version of events) prior to their depositions and that the surgeon’s version of events was playing a factor in their testimony.
- The R1 surgical resident testified that serial exams were ordered because if Mr. Ventura were to decompensate at any point between the 20th and surgery on the 21st, he would be taken in for surgery sooner. She further testified that as a matter of routine, they would perform serial exams on a patient like this with surgery scheduled for the next day.
Here is what we believe happened:
First, there was the obvious error made on the 19th by the resident radiologist (where he misread the CT) which set everything in motion. Then, shortly before 1:00 pm on the 20th, when the surgical residents got the news of the free air, the R2 (surgical resident) examined Mr. Ventura, saw that he was stable, and called the surgeon who was not yet in the hospital. The surgeon told the R2 to just put Mr. Ventura on the schedule for Monday and to order serial exams to make sure they don’t need to perform surgery sooner. The surgeon got to the hospital around 1:30, after the plan to operate the next day was already put into effect per the R2’s orders timed at 1:00 pm. Did the surgeon delay because it was a Sunday and/or because part of the surgical team was only “on call”? Likely. We did find out in discovery that the surgeon already was scheduled to be at the hospital performing surgery on Monday (he already had two laparoscopic cholecystectomies scheduled at 12:30 and 2:30).
We had the case reviewed by an expert trauma surgeon from Harvard, an expert radiologist, and an expert pathologist. They all confidently concluded that the radiologist and surgeon both breached the standard of care causing Mr. Ventura’s death. We also had a forensic economist file a report commenting the wage loss and other economic damages.
Following roughly two years of intense litigation, shortly before trial the case settled for a substantial amount with both the hospital (for the resident radiologist) and the surgeon contributing to the settlement.