Opinion
No. X07-CV03-0084278-S
June 15, 2006
MEMORANDUM OF DECISION
The plaintiff, Mary Wyszomierski, individually and as executrix of the estate of her late husband, Henry Wyszomierski, sues the defendants, Dr. Francis Siracusa and Surgical Associates of Willimantic, P.C., for medical malpractice in the treatment of Henry Wyzomierski. This matter was tried to the court, and the court makes the following findings of fact.
The defendant was born on July 5, 1932, and regularly drank alcohol until 1980, after which time he abstained from liquor consumption completely. Despite the cessation of alcohol ingestion, the decedent developed cirrhosis of the liver, which condition was confirmed by liver biopsy. At the time of the surgical procedures which are the subject of this lawsuit, the decedent's cirrhosis was rated, using the Child's cirrhotic liver classification system, as level A. Level A cirrhosis denotes early stage liver cirrhosis. At the time of Dr. Siracusa's treatment of the decedent, the decedent also suffered from diabetes II and hypertension. These conditions were controlled with medication.
Additionally, in 1986 the decedent had knee surgery and later had both knees replaced. In 1997 he had shoulder surgery, and in 1999 he had polyps removed during a colonoscopy. The decedent experienced no complications arising from these procedures. In June 1995, the decedent went to the Windham Community Memorial Hospital (Windham Hospital) emergency room complaining of chest pains, and he received a prescription for Cardizem. In August 1995, he was admitted to that hospital after several tests disclosed no evidence of cardiac problems. During this admission, he was diagnosed with having had an episode of acute pancreatitis. Toward the end of June 2001, the decedent daily began to experience mild abdominal pain after eating. The decedent assumed his discomfort was gas pain and treated himself with an over-the-counter remedy for excessive gas. On the decedent's sixty-ninth birthday, July 5, 2001, his family gathered in celebration, and he consumed a substantial meal and cake. Soon afterward, the decedent incurred severe pain in his chest and ribcage. These symptoms were very similar to those from which he suffered in the August 1995 pancreatitis attack. The plaintiff drove her husband to the Windham Hospital emergency department. Hospital staff admitted the decedent for evaluation. The decedent's personal physician, Dr. Glasser, conducted some tests on July 6, 2001, and diagnosed another episode of pancreatitis. Dr. Glasser then consulted with Dr. Siracusa, who is a board-certified general surgeon, licensed by the state of Connecticut.
The next day, July 7, 2001, Dr. Siracusa examined the decedent at the hospital, reviewed the laboratory test results, obtained a medical history of the decedent through his wife, and ordered a CT-scan and ultrasound to ascertain the cause of the decedent's recurring pancreatitis. The CT-scan showed the presence of gallstones in the decedent's gallbladder. Along with the ultrasound, the CT-scan also disclosed no other abnormalities of the gallbladder and the biliary duct system.
The biliary duct system works as follows. The liver produces bile, a surfactant, which aids in the digestion of food, especially fatty food. The bile produced by the liver flows down the various hepatic ducts into the common hepatic duct which itself merges with the cystic duct to form the common bile duct. The cystic duct descends from the gallbladder which is nestled under the liver. The liver bile backs up through the cystic duct where the bile is stored in the gallbladder. When bile is needed for digestion, chemical signals from the brain trigger the gallbladder to contract and expel the stored bile back down the cystic duct into the common bile duct. The common bile duct merges with the pancreatic duct just above the sphincter of Oddi, which regulates the discharge of bile into the duodenum, which forms a conduit between the stomach and small intestine. The ejection of bile into the duodenum is through a fleshy protuberance which projects into the duodenal space and is known as the papilla or ampulla of Vater.
Dr. Siracusa recommended to the decedent that his gallbladder be removed employing laparoscopic techniques and that a cholangiogram be performed during that surgery. The cholangiogram consists of injecting dye into the common bile duct which can then disclose the presence of gallstones in the duct system when viewed fluoroscopically. On July 20, 2001, Dr. Siracusa met with the decedent and the plaintiff to discuss the procedures which the doctor recommended.
The laparoscopic surgery was scheduled for July 25, 2001, at Windham Hospital. On July 23, 2001, Dr. Glasser examined the decedent and found him medically fit to have the surgery on July 25, 2001.
On July 25, 2001, Dr. Siracusa laparoscopically removed the decedent's gallbladder and performed the cholangiogram. This day-surgery procedure progressed uneventfully. After the decedent was anesthetized, Dr. Siracusa cut a small incision in the decedent's naval. A trocar, which is a sharply-pointed tubular instrument, was inserted through the incision and abdominal wall and into the abdominal cavity. Through this trocar, an endoscope was threaded in order to illuminate the area surrounding the gallbladder and to transmit a visual image to a monitor which Dr. Siracusa observed. Three or four additional small incisions were made, and trocars were also inserted into these openings. Inserted into these trocars were the various instruments needed to clamp the cystic duct, dissect that duct and the gallbladder, engage in actions to stanch bleeding, and execute the cholangiogram. Dr. Siracusa manipulated the trocars and instruments to perform these tasks while viewing the surgical area on the monitor. He extracted the gallbladder without problem.
A second monitor displayed the fluoroscopic image of the common bile duct into which dye had been injected. The dye permits gallstones within the ducts to appear distinctly on the fluoroscopic monitor. Dr. Siracusa noticed such a gallstone in the decedent's common bile duct, and the doctor attempted to flush the stone out of the biliary duct system and into the duodenum. Unfortunately, the stone kept backing up into the common hepatic duct, instead. At that point, Dr. Siracusa decided that elimination of this gallstone from the common bile duct would be better accomplished by an endoscopic procedure known as an ERCP.
As a general surgeon, Dr. Siracusa was never trained to perform an ERCP. Also, Windham Hospital lacks the equipment necessary to employ that procedure. Dr. Siracusa completed the laparoscopic surgery and later recommended to the decedent that a gastroentrologist perform an ERCP to remove the gallstone which the cholangiogram revealed present in the decedent's common bile duct.
During the gallbladder surgery, Dr. Siracusa observed that the decedent's liver was flexible and had only micronodular signs of cirrhosis rather that the macronodular structure which reflects a more advanced cirrhotic liver condition. Throughout the surgery, the decedent's liver retained its integrity and showed no fragmentation or unusual bleeding. When the gallbladder was dissected from the decedent's liver, the liver surface thus exposed appeared raw as expected, and the doctor used the customary methods of the application of chemical hemostats and cautery to quell any oozing of blood, postoperatively.
Later that day, the decedent's vital signs were stable, and he was discharged from the hospital. Before leaving for home the decedent met with Dr. Butensky, the gastroentrologist who was to perform the ERCP.
An ERCP is an endoscopic procedure, whereby a duodenoscope is passed through the mouth, down through the stomach, and into the duodenum. No incisions or penetration of the abdominal cavity is involved. Once in the duodenum, the papilla of Vater is identified and entered in order to view the common bile duct and remove gallstones if necessary. Also, a papillotomy can be executed whereby the papilla is incised to widen the point of discharge from the common bile duct into the duodenun to allow stones to pass more easily.
On July 26, 2001, the day after Dr. Siracusa performed the laparoscopic surgery, the decedent reported no fever, discomfort, nausea, or vomiting, and was in good spirits. From July 25, 2001, to the day the ERCP occurred, July 30, 2001, the decedent exhibited no signs of fever, swelling, pain, loss of appetite, or distress of any kind.
On July 30, 2001, Dr. Butensky performed the ERCP with papillotomy at St. Francis Hospital. No gallstones or other abnormalities were detected in the common bile duct. Dr. Butensky concluded that the gallstone seen by Dr. Siracusa five days earlier had passed on its own. The decedent was doing well when he was discharged by Dr. Butensky from St. Francis Hospital on July 31, 2001.
While at home, the decedent appeared to be recovering nicely and felt well until August 5, 2001. Late in the afternoon, the decedent and the plaintiff were relaxing at home on a porch swing. Suddenly, the defendant clutched the porch railing and felt severe abdominal pain on his right side, which pain radiated to his right shoulder. He became pale and very weak, nearly to the brink of collapse. The plaintiff summoned an ambulance, and the decedent was transported to the Windham Hospital emergency room. Upon arrival, the decedent's heart rate and blood pressure were depressed, and he was still having severe, abdominal pain. His abdomen was slightly distended, especially on his right side. Laboratory tests indicated he was anemic, and the decedent was admitted to the intensive care unit.
On August 6, 2001, the decedent felt somewhat better, but he was producing little urine and appeared dehydrated. Laboratory test results for that day showed elevated levels of chemicals in the blood which can be used to measure kidney and liver function as well as a high white blood cell count. Dr. Siracusa examined the decedent and recommended an exploratory laparoscopic procedure to determine the source of the decedent's symptoms. After beginning the laparoscopic procedure, Dr. Siracusa decided to switch to open surgery. The doctor detected some oozing from the crevice under the liver from which the gallbladder had been removed. Blood was aspirated from all quadrants of the abdomen. No other bleeding was observed. The doctor took measures to curtail the seepage.
Over the next few days, the decedent's kidney function slowly deteriorated. Eventually, the decedent required dialysis. Among other difficulties, the decedent sustained encephalopathy, a deterioration of his mental status of unknown cause, and later he became comatose. He remained in critical condition and needed a feeding tube and a tracheotomy. His pancreatitis persisted.
In September 2001, the decedent's mental state improved. By mid-month, he was awake, alert, conversing coherently, and feeding himself. However, his liver and kidneys continued to fail, and the decedent needed aggressive dialysis. His pancreatitis remained unabated, and he became depressed emotionally. By the end of September 2001, the decedent's condition was much improved, and he began a regimen of physical therapy. Because of irregular heart rhythms, Dr. Siracusa implanted a pacemaker on September 30, 2001. On October 2, 2001, the decedent was discharged from Windham Hospital to a nursing home and scheduled for dialysis three times per week. The decedent was wheelchair bound.
On October 11, 2001, after ten days at the nursing home, the decedent suffered another attack of severe abdominal pain and was transported to Windham Hospital. At the emergency room, his pain had subsided, but he was still admitted. The decedent was diagnosed with acute pancreatitis. On October 13, 2001, the decedent was discharged to his home where the plaintiff and their children could care for him with home health care assistance.
Back pain arose on November 1, 2001, which was diagnosed by Dr. Milite, a gastroentrologist, as a consequence of ascites. Ascites is the pathological accumulation of fluid in the abdomen produced by the disintegration of liver cells resulting from advanced cirrhosis. A TIPS procedure was performed on January 31, 2002, to alleviate ascites and a large quantity of fluid was removed. TIPS involves the emplacement of a transportal shunt to prevent bleeding and fluid buildup. By March 13, 2002, the ascites problem had subsided but would recur over the following months necessitating a revised TIPS. The decedent's cirrhosis worsened to Child's B or C status.
Over the next year and eight months, the decedent incurred a variety of complications and corresponding treatments and procedures related to his steadily declining liver and kidneys.
On November 4, 2003, the plaintiff attempted to rouse her husband to prepare him to go to dialysis. The decedent was confused, incoherent, and flailed his arms. An ambulance brought him to Windham Hospital, and he was admitted to the ICU. On November 6, 2003, Henry died from respiratory arrest caused by liver and kidney failure.
Additional facts will be recounted where appropriate.
In the first and second counts of the August 10, 2004 amended complaint, the executrix of the decedent's estate sues Dr. Siracusa for medical malpractice and Surgical Associates of Windham, P.C., under respondeat superior for Dr. Siracusa's conduct. The fourth count is brought by the plaintiff, individually, for loss of consortium. The third count pertained to another party and was withdrawn previously.
It is undisputed that Dr. Siracusa was an agent of Surgical Associates acting within the scope of his agency and that the plaintiff was the wife of the decedent at all pertinent times. Consequently, the liability of Dr. Siracusa for professional negligence will determine liability on all counts.
The elements of medical malpractice that the plaintiff must prove, by a preponderance of the evidence, are (1) that Dr. Siracusa was Henry Wyszomierski's physician; (2) that Dr. Siracusa departed from the standard of care owed to the decedent; and (3) that this departure proximately caused the decedent's injuries and death. Harlan v. Norwalk Anesthesiology, P.C., 75 Conn.App. 600, 613 (2003). It is conceded that Dr. Siracusa was the decedent's physician in July and August 2001.
Under General Statutes § 52-184c(a), the standard of care owed by Dr. Siracusa to the decedent was "that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers." For this case, subsection 52-184c(c) defines a similar health care provider as one who is trained and experienced in the same specialty and is certified by the appropriate American board in the same specialty. It is stipulated by the parties that Dr. Siracusa, in 2001, was a board-certified specialist in general surgery.
The plaintiff alleges that Dr. Siracusa breached the standard of care essentially as follows:
1. In that, he performed a laparoscopic cholecystectomy and cholangiogram on the decedent without adequately informing the decedent of the nature of the procedure, the risks, benefits, and alternatives to the procedure before obtaining the decedent's consent for the surgery of July 25, 2001;
2. In that, he lacerated or transected the decedent's liver during the procedure;
3. In that, he failed properly to consider and recommend that an endoscopic retrograde cholangiopancreatography (ERCP) be performed before deciding whether to perform the laparoscopic surgery to remove the decedent's gallbladder.
4. In that, he performed the July 25, 2001 laparoscopic surgery when it was unwarranted;
5. In that, he performed the July 25, 2001 laparoscopic surgery when he was insufficiently trained and/or unqualified to do so; and
6. In that, he failed to consult with a gastroentrologist before performing the laparoscopic procedure.
Duty to Inform
The plaintiff alleges professional negligence stemming both from the duty to inform as well as the duty to perform adequately. A malpractice complaint may include allegations of both substandard performance and a failure to inform a patient properly. Pekera v. Purpora, 80 Conn.App. 685, 691 (2003). The distinction between failing to exercise due care in executing a medical procedure and improperly informing a patient about the procedure "reflects the fundamental difference between the appropriate performance of professional skills and the proper engagement of a patient in decision making about his or her professional care." Id.
A treating physician has the duty to assist the patient by providing that information which a reasonable patient would find material in deciding whether to consent to the suggested course of treatment. Janusaukas v. Fichman, 264 Conn. 796, 876 (2003). Our Supreme Court has held that informed consent includes material communications with the patient about (1) the nature of the procedure; (2) the risks involved; (3) alternatives; and (4) the expected benefits. Alswanger v. Swego, 257 Conn. 58, 67-68 (2001).
In evaluating whether a physician has satisfactorily met the duty to inform a patient, a lay standard applies. Godwin v. Danbury Eye Physicians and Surgeons, 254 Conn. 131, 143-44 (2000). That is, this issue is decided by a consideration of the reasonable patient's need to know rather than the physician's opinion as to what course is best. As a result, expert testimony is unnecessary to establish a breach of the physician's duty to inform a patient sufficiently. Id., 144; Raybeck v. Danbury Orthopedic Associates, P.C., 72 Conn.App. 359, 372-73 (2002).
However, expert testimony may be necessary to establish what risks, benefits, and alternatives exist for a particular medical procedure for an individual patient.
The plaintiff was present during all discussions between her husband and Dr. Siracusa regarding the decedent's care. She testified that, at the July 20, 2001 visit, the doctor never discussed the risks, benefits, or alternatives to the laparoscopic surgery which Dr. Siracusa recommended and scheduled for July 25, 2001. According to the plaintiff Dr. Siracusa told the decedent merely that the planned surgery involved four or five small abdominal holes and that the decedent could return home the same day.
To the contrary, Dr. Siracusa testified that he explained to the decedent the details of the laparoscopic surgery which he recommended. He described for the defendant the benefits of laparoscopic gallbladder removal and the cholangiogram, i.e. removal of the probable source of the decedent's pancreatitis. Dr. Siracusa indicated to the decedent that this source was gallstones in the common bile duct, a condition which would recur if the gallbladder were not removed. Pancreatitis can be very serious and even fatal if left untreated. He recommended laparoscopic surgery over open surgery because it is less invasive, causes less bleeding, has a shorter recovery period, and produces a less painful recovery requiring less medication.
Dr. Siracusa also testified that he told the decedent of the risks of the laparoscopic procedure, viz infection, bleeding, unintended penetration of surrounding tissue, and the use of anesthesia. He testified he specifically warned the decedent that he might have to convert the laparoscopic surgery to open surgery during the procedure if the decedent's cirrhotic liver warranted such conversion.
The court finds Dr. Siracusa's testimony credible in this regard and determines that the plaintiff's testimony on the issue of a lack of informed consent was untrustworthy. Dr. Siracusa's notes confirm that he discussed the proposed procedure and its risks, benefits, and alternatives with the decedent on July 20, 2001. Also, the decedent signed a consent form acknowledging the same. The plaintiff testified that to her recollection, no doctor ever discussed these matters regarding any medical procedure the decedent ever had, including his knee repair surgery, his knee replacement surgery, his liver biopsy, his shoulder surgery, etc. She further avowed that neither she nor the decedent ever read any consent form given to them for any of the many procedures and treatments that the decedent had. Instead, it was the practice of the decedent and the plaintiff simply to sign the forms and agree to whatever course of treatment the doctors recommended. In other words, the decedent and the plaintiff had no interest in learning of these matters and acted under the rubric that doctor knows best. The court finds the plaintiff to be a poor historian with respect to what Dr. Siracusa and the decedent's other physicians explained to him or failed to explain.
As to the particular risks, benefits, and alternatives which the court has found Dr. Siracusa did relate to the decedent on July 20, 2001, the plaintiff's expert, Dr. Modlin, agreed the advice was proper with the exception that an ERCP ought to have been discussed as a viable alternative before laparoscopic surgery. Dr. Siracusa conceded that he never discussed an ERCP as a potential alternative with the decedent. As noted above, an ERCP is a less invasive procedure than laparoscopic surgery because no abdominal incisions are made. However, an ERCP is primarily a diagnostic tool. Although it can be used therapeutically, as it eventually was in this case, to perform a papillotomy, it cannot remove a gallbladder, and, therefore, it is not a legitimate treatment option for biliary colic.
An ERCP has its own set of risks, as well. The procedure can cause bleeding, may perforate the duodenum, may introduce infection, and may induce postprocedural pancreatitis. All of these complications are very serious and can be fatal. Indeed, the ERCP is the most hazardous of all endoscopic procedures.
But a physician is obligated to discuss all alternative treatments except for those which are merely remote possibilities. Pedersen v. Vahidy, 209 Conn. 510, 522 (1989). A physician must communicate for a patient's consideration even those alternative actions which may be more dangerous than the one the doctor is recommending. Id., 521-22. A treating physician is required to inform patients of a viable alternative even if that course of action is likely to produce a less desirable outcome than the treatment which the doctor thinks is best suited for the patient. Gemme v. Goldberg, CT Page 11085 31 Conn.App. 527, 545 (1993).
Therefore, the court concludes that Dr. Siracusa's failure to discuss an ERCP as an alternative to laparoscopic surgery for the decedent breached the standard of care. A reasonable patient in the decedent's position would have found it material to know that such an alternative existed and the reason why Dr. Siracusa recommended a different route.
This conclusion alone does not establish liability for medical malpractice, however. The plaintiff must also prove, by a preponderance of the evidence, that had an ERCP been discussed as an alternative to laparoscopic gallbladder removal and cholangiogram, an objective and prudent patient in the decedent's position would have chosen an ERCP over the recommended treatment. Hammer v. Mount Sinai Hospital, 25 Conn.App. 702-12, 714 (1991). In the absence of such proof, the plaintiff fails to establish that the injuries and death of the decedent were proximately caused by this omission. Id.
Causation is ordinarily a question of fact for the fact-finder to determine. Busko v. DeFilippo, 162 Conn. 462, 466 (2972). The court finds that the plaintiff has failed to demonstrate that even if ERCP as an alternative had been discussed that a reasonably prudent patient in the decedent's position would have selected that endoscopic procedure over the laparoscopic gallbladder removal and cholangiogram that were performed in this case.
The plaintiff's expert indicated that he had performed laparoscopic gallbladder removal in cirrhotic patients many times and that the general principles for such surgery are substantially the same whether the patient has a cirrhotic liver or a healthy one, although the risk of uncontrolled bleeding is greater with a cirrhotic condition. This increased risk exists because a cirrhotic liver clamps around the gallbladder with greater force than normal, and this increases pressure in liver cells and the blood vessels supporting the liver. Also, a cirrhotic liver secretes less clotting agent into the bloodstream. The surgeon must, therefore, use great caution to minimize the chance of injuring the already compromised liver.
The evidence disclosed four realistic, potential causes which could have accounted for the decedent's pain on July 5, 2001. Two sources of this pain emanate from the gallbladder, and two emanate from the pancreas. First, the severe discomfort could have arisen from stones within the gallbladder itself, which stones irritate the gallbladder creating a condition known as cholecystitis. Second, the pain could have indicated biliary colic which is unrelated to the presence of gallstones. Third, the pain could also have stemmed from gallstone pancreatitis, an inflammation of the pancreas caused by gallstones having migrated from the gallbladder, passed into the common bile duct, and lodged adjacent to the pancreas. The last potential source is alcohol-influenced pancreatitis, a condition resulting from long-term alcohol abuse and which manifests regardless of the presence or absence of gallstones.
An ERCP can assist in differentiating between pancreatitis that results from gallstones or is induced by prolonged alcohol usage. The ERCP can also locate gallstones in the common bile duct and facilitate their evacuation by papillotomy, i.e. widening the papilla of Vater by incision. But an ERCP cannot treat cholecystitis nor biliary colic.
Laparoscopic gallbladder removal and cholangiogram, on the other hand, will likely resolve three of those four possible conditions, viz. cholecystitis, biliary colic, and gallstone pancreatitis. Alcohol-induced pancreatitis has no cure, and the treatment is merely palliative and involves dietary restriction and pain medication.
On July 20, 2001, an ordinarily prudent patient in the decedent's circumstances would have known that gallstones were detected in his or her gallbladder as a result of the ultrasound test and that his or her attacks were recurrent. Such a patient would understand that, while an ERCP is less invasive than laparoscopic surgery, both procedures are relatively safe; that laparoscopic gallbladder removal would completely cure biliary colic, and cholecystitis, and that a cholangiogram had a reasonable opportunity to purge any gallstones from the common bile duct curing gallstone pancreatitis; and that an ERCP can only treat gallstone pancreatitis and identify, although not cure, alcohol-induced pancreatitis. The patient would recall that he or she had abstained from alcohol for over twenty years before the July 5, 2001, attack. Finally, the rational patient would comprehend that the preexisting cirrhosis of the liver made gallbladder removal riskier than otherwise.
The court concludes that the plaintiff has failed to prove that an ordinarily intelligent patient would have favored an ERCP over laparoscopic gallbladder removal, which promised a greater chance of success with respect to various suspected causes of the attacks. Consequently, the plaintiff has also failed to prove that Dr. Siracusa's failure to discuss having the decedent undergo an ERCP before gallbladder removal surgery proximately caused his injuries and death.
Liver Laceration Claim
Although several medical reports generated after the August 6, 2001 open surgery which stopped the oozing of blood from the raw area adjacent to where the decedent's gallbladder had been removed on July 25, 2001, mention a liver laceration occurring during the earlier procedure, after a consideration of all the evidence, the court finds that Dr. Siracusa did not lacerate the decedent's liver during that laparoscopic surgery. Dr. Siracusa testified that the decedent's gallbladder was dissected from his liver normally and without incident. At the August 6, 2001 surgery, he noticed rawness and oozing of blood but no laceration of the liver. The court finds Dr. Siracusa's account credible.
Furthermore, the plaintiff is obligated to present expert testimony that a laceration of the decedent's liver during the July 25, 2001, laparoscopic gallbladder removal was an action which would fall below the requisite standard of care for board-certified general surgeons. Cavallaro v. Hospital of Saint Raphael, 92 Conn.App. 59, 65 (2005). Dr. Modlin, the plaintiff's sole expert witness as to standard of care, testified that he perceived no problem with the manner in which Dr. Siracusa executed the laparoscopic surgery to remove the gallbladder and the cholangiogram. Dr. Modlin found fault with the decision to perform the procedure rather than with Dr. Siracusa's manner of performance during the surgery of July 25, 2001. Bleeding is a known and accepted risk of such surgery, and the existence of postsurgical bleeding is not a breach of the standard of care in and of itself.
Therefore, the court finds that the plaintiff has failed to establish this specification of professional negligence by a preponderance of the evidence.
Inadequate Training Claim
The court also rejects the plaintiff's allegations that Dr. Siracusa was ill-trained and unqualified to perform a laparoscopic removal and cholangiogram on a patient with a cirrhotic liver on July 25, 2001.
When Dr. Siracusa attended medical school and completed his residency training in the 1970s, removal of a gallbladder laparoscopically was a medical technique unknown and unused in the United States. Around 1989, this procedure was introduced to our surgical practices. Shortly thereafter, Dr.Siracusa took courses specifically designed to teach surgeons how to perform laparoscopic gallbladder removal. These courses comprised equal parts of classroom education and practical experience using animal subjects. Eventually, Dr. Siracusa was credentialed to perform this type of surgery. Between 1991 and 2001, he removed twenty-five to forty gallbladders per year with this technique. In 1997, he began conducting cholangiograms laparoscopically including extracting and flushing gallstones from the common bile duct. Before the decedent's surgery on July 25, 2001, Dr. Siracusa had successfully executed laparoscopic gallbladder removal on two or three patients who also had liver cirrhosis.
As mentioned above, the plaintiff's expert, Dr. Modlin, found no fault with Dr. Siracusa's techniques in performing the surgical procedure of July 25, 2001.
The court finds that the plaintiff has failed to meet her burden of proving that Dr. Siracusa was inadequately trained or experienced to perform the laparoscopic gallbladder removal and cholangiogram on the decedent on July 25, 2001. Therefore, no finding of medical malpractice can be based on this specification of professional negligence.
Other Claims of Professional Negligence
Because the remaining specifications of professional negligence all center on Dr. Siracusa's decision to recommend and perform the laparoscopic surgery and cholangiogram rather than having an ERCP done first, the court addresses these assertions collectively.
Dr. Modlin opined that it was beneath the standard of care for Dr. Siracusa to attempt a laparoscopic gallbladder removal before an ERCP had been done to discern whether the decedent's pancreatitis was the product of gallstones in the common bile duct or was alcohol-induced. Dr. Modlin asserted that, had an ERCP preceded any decision to remove the decedent's gallbladder, the lack of need for such removal would have been apparent. He also contends that, had Dr. Siracusa consulted with a gastroentrologist regarding the decedent's care, that specialist would have suggested that an ERCP was in order rather than gallbladder removal. He again concludes that the results of the ERCP and papillotomy would have eliminated gall stones as a source of the decedent's pancreatitis obviating the need for gallbladder removal in a patient with an elevated risk of uncontrolled bleeding because of cirrhosis of the liver.
Dr. Modlin further opined that, because gallbladder removal was unwarranted and recommending and performing such removal fell below the standard of care, the resulting bleeding into the decedent's abdominal cavity which precipitated the cascading complications of liver failure, kidney failure, encephalopathy, and death was caused by that breach. Clearly, Dr. Modlin's opinion regarding this chain of causation is contingent upon the avoidance of gallbladder removal. The court is unpersuaded that the performing of an ERCP, more probably than not, would have eliminated the need for gallbladder removal based on all the evidence in this case.
As factfinder, the court is free to accept or reject all or any part of Dr. Modlin's analysis. His opinion was that an ERCP would have provided solid confirmation that the decedent's pancreatitis was alcohol-induced rather than provoked by gallstones in the common bile duct. Under his theory, the ERCP would have generated a diagnosis of alcohol-induced pancreatitis which would have rendered the known presence of stones in the gallbladder irrelevant and the extraction of the gallbladder unnecessary. The flaw in his theory is an assumption that because the ERCP conducted on July 30, 2001, showed no gallstone in the common bile duct, an ERCP performed earlier would have also disclosed the absence of such stones. The court rejects the validity of this assumption.
If an ERCP had been done on or near July 25, 2001, or earlier, it would have detected the gallstone in the common bile duct which the cholangiogram that Dr. Siracusa executed on July 25, 2001, definitively disclosed existed there on that date. Detection of that gallstone in the common bile duct, by whatever technique, would have left the issue of whether the decedent's recurring pancreatitis was gallstone or alcohol-related ambiguous. Instead of diverting the physician's attention away from gallstone pancreatitis, an earlier ERCP would have drawn the diagnostician toward the idea that gallstones in the common bile duct were the source of the decedent's recurrent pancreatitis. At a minimum, the diagnostic information would have been equivocal.
As noted above, an ERCP is of no benefit for patients whose pain is caused by biliary colic, another viable candidate for the source of the decedent's discomfort. Biliary colic is, however, completely cured by gallbladder removal. Gallbladder removal also eliminates the birthplace of gallstones which were known to exist in the decedent's gallbladder and, on July 25, 2001, were known to have migrated into his common bile duct. Thus, the gallbladder removal would completely cure gallstone pancreatitis if that were the source of the decedent's recurring condition.
Having rejected Dr. Modlin's conclusion in this regard, the court finds that the plaintiff has failed to meet her burden of proving that had an ERCP been performed before laparoscopic gallbladder removal, such surgery would have been avoided along with the tragic decline and demise of the decedent. The court does not find, therefore, that Dr. Siracusa's recommendation for performing the July 25, 2001, laparoscopic gallbladder removal and cholangiogram was a substantial factor in producing the decedent's injuries and death alleged by the plaintiff.
Judgment enters for the defendants on all counts.