Case details

Surgeon correctly performed gallbladder surgery: defense





Result type

Not present

digestive, gallbladder, gastrointestinal, loss, removal
On May 28, 2009, plaintiff Lindsey Barr, 26, an American Kennel Club bulldog breeder, underwent a laparoscopic cholecystectomy by Dr. Douglas Cook, general surgeon, at Adventist Medical Center of Selma, in Fresno County. Earlier that month, on May 9, 2009, Barr presented to the emergency room at Adventist Medical Center of Selma with complaints consistent with symptomatic cholelithiasis (or gallstones), which was confirmed by way of an ultrasound examination that same day. Surgery was recommended, but Barr declined and signed out against medical advice. She claimed she wanted to get a second opinion from her primary care provider before undergoing surgery. After seeing her primary care provider and complaining of upper, right quadrant abdominal pain and nausea, Barr was referred to Dr. Yemelyan “Lenny” Spivak, a general surgeon. During her May 20, 2009 visit, and following a physical examination and a discussion of her symptoms, Spivak diagnosed Barr with symptomatic cholelithiasis, and recommended that Barr undergo a laparoscopic cholecystectomy. Barr agreed, and Spivak scheduled her for surgery at Adventist Medical Center of Selma on May 28, 2009. The procedure was to be performed by Cook, who worked with and was employed by Spivak. Barr ultimately underwent the laparoscopic cholecystectomy on May 28, 2009. However, Cook’s operative report indicated that he encountered significant chronic, dense adhesions at the gallbladder with the omentum attached to the gallbladder’s surface. Cook worked to carefully take down the adhesions. Thereafter, he identified what he perceived to be the cystic duct and cystic artery. Cook’s operative report noted that the cystic duct was “very dilated.” As a result, Cook performed an intraoperative cholangiogram with the use of a Kumar clamp on the infundibulum, which was interpreted as normal. The cystic duct and cystic artery were then clipped and incised, and Cook removed the gallbladder from Barr’s abdomen. A Jackson-Pratt drain was placed, and Cook looked for bile leakage/drainage, as well as excessive bleeding. Observing none, Cook closed Barr up and concluded the procedure. His operative report noted no intraoperative complications, and the surgery took approximately one hour. A pathology report ordered by Cook on the specimen that he removed laparoscopically was later interpreted the removed gallbladder to be 6.5 centimeters by 2.5 centimeters by 1.5 centimeters with no gallstones present inside of it. However, there was no evidence that Cook ever reviewed or saw the pathology report. This report was not prepared until June 1, 2009, which is the date that the specimen was received by the pathologist, who also identified the gallbladder specimen as being “previously opened.” Cook claimed that he did not believe that he opened the gallbladder, either intra-operatively or following its removal, indicating that he would have no reason to do so, as he reasonably concluded that the gallstones were present in the gallbladder specimen that was removed. Following the May 28, 2009 surgery, Barr followed-up at Spivak’s office, where Cook worked, on June 3, 2009; June 5, 2009; June 10, 2009; and June 24, 2009. The June 10, 2009 visit was performed by a nurse practitioner named George Nunes, and a CT scan was ordered by Spivak the next day, secondary to Barr’s complaints of mid- to lower-abdominal pain. The CT scan was performed on June 12, 2009, and it was interpreted as identifying a “shrunken gallbladder” with two small stones present. Barr had no further contact with Spivak’s office after the documented June 24, 2009 visit. Nearly five years later, on March 26, 2014, Barr presented to the emergency room at Saint Agnes Medical Center, in Fresno, with complaints of severe, sharp abdominal pain. An ultrasound was ordered and interpreted as demonstrating acute cholelithiasis and a remnant portion of the gallbladder being present. Dr. Praneetha Narahari, a general surgeon, subsequently recommended that Barr undergo a laparoscopic cholecystectomy to remove the remnant gallbladder. The procedure was performed the next day, during which Narahari removed a gallbladder remnant that had several adhesions present. Barr sued Cook, Spivak, and Adventist Medical Center of Selma. Barr alleged that the defendants failed to properly perform the initial surgery, causing remnants of the gallbladder to remain until she had it removed. She also alleged that this failure constituted medical malpractice. The plaintiff’s general surgery expert, over strenuous objection from defense counsel by way of a motion for a protective order, had portions of his deposition testimony read into the record, including adverse standard-of-care testimony. Plaintiff’s counsel noted that the expert general surgeon resided over 150 miles from the courthouse, but defense counsel noted that the expert claimed to be unavailable to testify at time of trial due to a pre-existing commitment to attend a medical conference in Washington, D.C. The plaintiff’s general surgery expert testified during depositions that Cook misconstrued the anatomy by incorrectly identifying the infundibulum of the gallbladder as an enlarged cystic duct and by failing to account for the two known gallstones. The expert also opined that Cook was required to make sure that Barr was informed of the June 12, 2009 CT scan results. Barr claimed that after the May 28, 2009 surgery, she had all of her pre-operative and post-operative visits with Cook and no other physicians, including Spivak or any other doctor at his office. She also claimed that after she underwent the CT scan on June 12, 2009, she had another follow-up appointment scheduled at Spivak’s office to go over the results of the CT scan. However, plaintiff’s counsel argued that there was no evidence that Barr was ever informed of the follow-up appointment or of the CT scan results. Counsel also argued that there were two records indicating that Cook ordered a potential ERCP(endoscopic retrograde cholangio-pancreatography) for Barr the day after his office received the CT scan results. However, plaintiff’s counsel argued that although records from Barr’s medical chart at Spivak’s office indicated that a referral to a local gastroenterologist was made by Cook for an evaluation of a potential, there was no evidence that Barr was informed of that appointment either. Defense counsel denied that Cook was negligent in connection with the performance of the May 28, 2009 laparoscopic cholecystectomy, and argued that Cook had no reason to believe that there was any gallbladder remnant remaining following the surgery. Counsel also contended that Cook was not copied on the CT scan report and that there was no evidence or indication that the imaging study or report was ever provided to Cook. Thus, defense counsel argued that there was no evidence that Cook was made aware of the results of the June 12, 2009 CT scan and, therefore, Cook had no duty to inform the patient about results that he was unaware of, as he had no interaction with Barr of any kind following her discharge from Adventist Medical Center of Selma on May 28, 2009. The defense’s standard of care expert testified that Cook acted reasonably at all times and demonstrated careful surgery technique on a difficult case of cholecystitis with a dilated cystic duct. He also testified that the evidence suggested that Cook took extra time to be cautious with Barr, given Barr’s inflamed anatomy, including performing an intraoperative cholangiogram as well as placing a Jackson-Pratt drain for Barr. The defense’s expert also opined that whatever portion remained of the gallbladder must have been small for it to have been fully occluded by a 1-centimeter plastic clip, otherwise one would have expected bile leakage to be present and seen in the Jackson-Pratt drain within 48 to 72 hours after the procedure. Defense counsel noted that on April 9, 2014, Barr had a post-operative follow-up appointment with Narahari, during which Barr mentioned that she was considering pursuing litigation against her prior surgeon. Narahari testified that she recommended against such action by Barr, noting that gallbladder remnants being present following a laparoscopic cholecystectomy, while uncommon, were not unheard of and were not indicative of an inference that the prior surgeon had done anything wrong. Narahari also testified that she was contacted by plaintiff’s counsel and asked to serve as an expert witness on behalf of Barr, but that she declined to do so because she didn’t feel she could ethically serve as an expert when she didn’t feel the prior surgeon had made a mistake of some kind. In response, plaintiff’s counsel pointed out that Narahari further testified that she had not reviewed any of Barr’s prior medical records and did not have any information regarding whether Barr had been informed of the prior CT scan results in 2009., On March 26, 2014, nearly five years after the surgery performed by Cook, Barr presented to the emergency room at Saint Agnes Medical Center, in Fresno, with complaints of severe, sharp abdominal pain. An ultrasound was ordered, and it was interpreted that Barr had acute cholelithiasis and a remnant portion of the gallbladder present. Dr. Praneetha Narahari subsequently performed a laparoscopic cholecystectomy to remove the remnant gallbladder, which had several adhesions present, the next day. Barr recovered well from the March 27, 2014 surgery, and there was no indication that she has experienced any problems in connection with her gallbladder or would be expected to encounter any problems in the future. Thus, Barr sought recovery of $300 to $1,000 in economic damages for the reasonable value of a surgeon’s fees for the March 27, 2014 procedure with Narahari. She also sought recovery of non-economic damages for pain and suffering. Defense counsel noted that plaintiff’s counsel attempted to enter into evidence information regarding payments made to the hospital, but that the information was excluded by Judge Mark Snauffer, given that Barr did not make the payments herself and did not have any expert testimony that would support the reasonable value of the services provided by the hospital in connection with the March 27, 2014 surgery with Narahari. However, plaintiff’s counsel argued that evidence of payment was, itself, sufficient to establish the reasonable value of the services provided.
Superior Court of Fresno County, Fresno, CA

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