Nissen Fundoplication Surgical Error

CATEGORIES: Surgical Errors CASE LOCATION: Allegheny Co., PA. CLASSIFICATION: Multi-Million Recoveries

The Lukich Case

Case Summary

In this case, the Defendant surgeon botched a stomach surgery resulting in devastating, permanent, and life-changing injuries to his patient.

Case Details

A “Nissen fundoplication” is a laparoscopic surgery to treat reflux and hiatal hernias by wrapping the top portion of the stomach around the gastro-esophageal junction to strengthen it (also known as a “wrap”). On occasion, after time, the wrap may need to be redone. This is called a “redo” surgery. The most critical step in performing a redo is to locate the prior wrap and take it down before fashioning the new wrap. Failing to do so can cause the stomach to become ischemic and/or perforate.

A 46-year old patient was seen by the Defendant, a general surgeon, because she was experiencing reflux. During this exam, the patient informed the Defendant that she had a prior laparoscopic Nissen fundoplication to treat reflux. Without performing a sufficient pre-operative evaluation and/or testing to verify that reflux was causing the problem, Defendant recommended a “redo” of the Nissen fundoplication which is a technically challenging operation that the Defendant was unqualified to do; yet, he chose to perform this operation on his patient.

Factual Background

Incredibly, during surgery, the Defendant failed to identify and take down the prior fundoplication; failed to properly identify the gastro-esophageal junction; failed to recognize the gastro-esophageal junction had migrated to the thoracic (chest) area and was no longer in the abdomen; performed an inadequate and incomplete dissection of the stomach, esophagus and esophageal hiatus; failed to correctly identify the patient’s anatomy; and constructed the redo fundoplication in the wrong area. In fact, in his operative report, the Defendant wrote, “there was evidence of the previous surgery” and that there was “probably evidence of the esophagus into the abdomen but this was difficult to ascertain for sure.” Nonetheless, he proceeded with the “redo” despite noting obvious uncertainty regarding the anatomy.

In any event, following surgery, the patient experienced severe, diffuse abdominal pain, was unable to breathe deeply, had an elevated pulse, required oxygen, had cool clammy skin, drops in blood pressure, and a distended abdomen with tenderness. After two days of being told to just take pain medication and to “suck it up”, the patient finally requested to be transferred to UPMC-Presbyterian in Pittsburgh.

At Presby, a cardiothoracic surgeon had to perform emergency exploratory surgery which was converted to an open laparotomy due to sepsis. The surgeon took down (unwrapped) the redo fundoplication performed by the Defendant and found an ischemic stomach with multiple gastric perforations which the surgeon noted were caused by the Defendant’s surgery. The surgeon then entered the mediastinum (thorax or chest area) and found the prior older fundoplication which he also took down. Notably, in his deposition, the Defendant claimed that the prior fundoplication was not present during his surgery because it had become “undone”, and that the GE junction was not in the chest during his surgery; however, he admitted that if the GE junction had been in the chest “then I’m in the wrong spot”. He agreed that if he had known ahead of time that the prior fundoplication was in the chest area he would have given the patient the option to go to a hospital where there was a thoracic surgeon.

Back to the corrective surgery at Presby, that surgeon also specifically noted that the mediastinum had not been recently entered. As a result, the patient had to have the ischemic part of the stomach removed and diverted (bypassed). Her stomach was partially resected with bipolar esophageal exclusion, chest tubes placed, a feeding tube placed in the intestine, and a nasogastric tube was also placed to drain the esophagus.

Two days later, the patient had to return to surgery where the right chest required decortication of the lung. Roughly 2 cm in length was removed from the esophagus in order to create an esophagostomy. The esophagus was mobilized all the way from the hiatus up into the neck. The esophagus was brought out anterior to the clavicle about a third of the way down in the chest, the left side of the neck was opened and then the ostomy was matured. Several drains and new chest tubes were placed.

The patient then underwent 6 more surgeries involving debridement of the abdominal and neck wounds as well as placement of several abdominal wound vacs. Another 4 cm of esophagus was removed due to esophagotomy necrosis. Surgery was needed for abdominal wound dehiscence and drainage of a pelvic abscess. Several bronchoscopies were required for removal of mucous plugs. She incurred numerous complications during this admission and her diagnostic list was extensive including peritonitis, drainage of intra-abdominal and pelvic abscesses, septicemia, septic shock, acute vascular insufficiency of the intestine, pulmonary collapse, peritoneal abscess, acidosis, migraines and malnutrition. She developed a DVT treated with Coumadin.

After being discharged to home, the patient required 2 months of home nursing care involved assistance with her painful wound vac, prolonged non-healing abdominal wounds, dressing changes, and J tube feedings which were scheduled over 18 hours every day. Additionally several ER visits were needed because of tube issues. She required readmissions on several times for dislodged and leaking tubes. Further surgery was also required due to stricture of the esophagostomy as well as a non-healing abdominal wound and malpositioned tubes.

Months later, the patient finally underwent surgery to reattach the remaining esophagus to the gastric remnant. During this surgery a part of the left clavicle and the xiphoid process of the sternum had to be removed. Her diet was slowly advanced and roughly one year after surgery, she was able to have the jejunostomy feeding tube removed. She continued to suffer from a great deal of pain but she attempted to slowly taper her pain medications. She required an additional two months of home care following that.

As a result of all of the above, the patient had difficulty swallowing and was diagnosed with esophageal stenosis. Studies revealed additional areas of narrowing at the previous surgical repairs where the esophagus meets the stomach and where the stomach connects to the intestine. Consequently, these conditions have required almost monthly, painful dilations of the narrowed areas under general anesthesia with the consequent risks including the risk of aspiration (a tool is inserted through the esophagus, stomach and to the beginning of the intestine and used to stretch the scar tissue causing the narrowed areas). These dilatations will be ongoing permanently for the rest of the patient’s life and place her at risk for a permanent feeding tube.

The patient also received extensive care from a pain specialist, including Fentanyl patches and narcotic pain medication, for abdominal pain, shoulder, neck and arm pain as well as migraines. Her PCP records note she continues to suffer from GERD or reflux. Her other diagnoses include chronic all-over body pain caused by the trauma to her body and fatigue. She has also frequent cluster headaches which make her pass out.

The patient was a life-long resident of Armstrong County, graduating from Ford City High School. Her physical appearance changed drastically from this botched surgery. She could barely eat (her diet was essentially limited to yogurt, applesauce, and peanut butter). She had frequent and persistent nausea and vomiting. She had numerous scars all over her chest and neck. She was frequently in debilitating pain (10/10 on a bad day and 6/10 on a very good day). Her bathroom habits hindered her daily life (she either had diarrhea or was constipated). She had swallowing difficulties as food stuck in her throat (hence the dilation procedures). The removal of her left clavicle left her with an impaired use of her left arm as well as neck and shoulder nerve pain (e.g. she couldn’t even carry a laundry basket). She was losing her hair from malnutrition. She could no longer work (she worked as a preschool teacher at a childcare center and also on the weekends in an antique shop). She became reclusive.We filed suit against the surgeon and hospital that employed him.

As to liability, there really was no credible defense. For example, the standard of care is unequivocal that the prior wrap must be identified and taken down. There is no dispute that this was not done (the surgeon at Presbyterian documented that he found the prior wrap). As another example, there was no dispute that the mediastinum was not entered (it must be entered to find the prior wrap). There is no dispute that this was not done (the surgeon at Presbyterian documented that the mediastinum was not entered).

The Lawsuit

The Defenses

As to causation, there was no credible defense that the resulting injuries were not directly caused by the surgery. Moreover, prior to this surgery, Mary Ann was a healthy, active woman with no significant medical history.

The “defense” was that the perforations and ischemic stomach were accepted risks of surgery that are known to occur without negligence. To present this defense, the Defendants’ experts were pointing to stomach adhesions (scarring) that were already present from the prior fundoplication and blaming those adhesions for causing the ischemia. In other words, the defense was that the clear negligence was simply a bizarre coincidence.

The underlying “defense” in this case was to “trash” and intimidate the Plaintiffs. For example, the couple separated during the pendency of the case and the wife was going to family counseling. The Defendants tried to obtain these irrelevant, mental health records (dealing with family issues); however, the Court denied Defendants’ attempts. Also, at the 11th hour, the Defendants subpoenaed various police departments to obtain records related to a DUI that the husband had 15 years earlier, a driving citation the wife had, etc.; none of which would have been admissible at trial.

On behalf of clients, we secured one of the world’s foremost experts on fundoplication surgery. This expert graduated from Johns Hopkins School of Medicine, was the Chief of Gastrointestinal Surgery at a major tertiary hospital, and was a Professor of Surgery at an Ivy League medical school.

The Experts

To defend the surgeon, the Defendants hired an “expert” who graduated from the Medical College of Toledo who was in a private surgical practice in Weirton, West Virginia.

We also secured one of the most respected gastroenterologist experts in the northeast to provide opinions on causation and damages. This physician was the Chief of Gastroenterology at several large medical centers and a Professor of Medicine an Ivy League medical school for over 40 years.

To defend that aspect of the case, the Defendants hired an “expert” who graduated from the Philadelphia College of Osteopathic Medicine who practiced out of Butler and Elwood City Hospitals.

We also secured opinions and expert reports from an economist expert and a life care plan expert. These experts were required to present testimony at trial on the economic impact of the injuries including wage loss and future medical costs.

Roughly three weeks before the scheduled jury trial, the parties agreed to mediate the case, which means to voluntarily meet with a private mediator to see if the parties could settle the case. Although the case did not settle at the mediation, it settled two days later for a confidential seven-figure amount.