Vascular Surgeon's Defense Verdict Vacated-New Trial Ordered
On June 14, 2019, a New York appellate court rejected a defense verdict awarded to a vascular surgeon by an upstate jury regarding the performance of an aortobifemoral bypass. The malpractice theory advanced at trial was that the surgeon failed to properly inspect the bowel as it was returned to the abdomen. The patient suffered a bowel perforation during surgery which was undetected leading to peritonitis, sepsis, multi-organ failure and was comatose for two months.
The jury was sent out with a verdict sheet that asked the jury to decide: whether a "focused inspection" of the bowel was required. However, none of the experts used this terminology. Rather the term "running the bowel" was described by all the experts as "an extremely thorough mechanism" whereby a surgeon runs his or her hands over the bowel, segment -to-segment, looking at it while flipping it back and forth to examine every aspect of it. The experts only debated whether "running the bowel" was required under the circumstances of an aortobifemoral bypass.
A new trial for the plaintiff was ordered, and the lower court was reversed because: the defense expert agreed the standard of care required the surgeon to inspect the bowel and the defendant vascular surgeon testified that he only examined the top side of the bowel. There was no testimony that the defendant ensured that the assistant surgeon carefully viewed the other side of the bowel. Accordingly, it was found that the evidence preponderated in favor of the plaintiff and that no reasonable jury could have reached a defense verdict. Monzon v Porter, 2019 NY Slip Op 04855
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