William T. Collins, III of Feldman, Kleidman, Collins & Sappe LLP (FKC&S) successfully defended a Westchester County, NY general surgeon in a case involving allegations of failure to timely diagnose appendicitis, delay in performing surgery and performing the incorrect surgery.
The 69-year-old patient presented to the emergency room (ER) on June 1, 2016, with complaints of right lower quadrant abdominal pain that she rated as 10 out of 10. She also experienced shortness of breath after lifting an air conditioning unit two days earlier.
Her labs showed a normal white blood cell count and an abdominal computed tomography (CT) scan showed a hematoma in the abdominal wall, evidence concerning for pneumonia and a partial small bowel obstruction (PSBO). The report from the CT scan did not comment on the appendix. She was admitted to the hospital under the care of her private attending physician, who called for consultations in gastroenterology, infectious disease, pulmonology and surgery (FKC&S’s client) for the PSBO. She was given antibiotics for the presumed pneumonia.
FKC&S’s client examined the patient on June 2, reviewed the CT scan and opined the appendix looked normal. Nevertheless, he requested a re-read by the radiologist specifically for the appendix, who eventually addended his report to indicate that there was no evidence of acute appendicitis.
By the time of this encounter, the patient’s abdominal symptoms were improving, her white blood cell count remained normal and she was very hungry – signs that point away from typical appendicitis. FKC&S’s client visited the patient on Friday, June 3 and noted improvement in her initial complaints. He agreed with the infectious disease specialist who saw her earlier and noted that: she likely did not have appendicitis; the PSBO was more likely an ileus; the abdominal pain was likely secondary to the abdominal muscle strain; and that she more likely had atelectasis rather than pneumonia. The plan was to take her off antibiotics and observe. Since FKC&S’s client was off the following two days, the plaintiff was covered by the on-call surgeon over the weekend.
Late during evening of Saturday, June 5, the patient spiked a fever of 101.7. By the following morning, her temperature was normal and she reported that her abdominal pain was 85 percent better. On Sunday afternoon, she experienced sharp right lower quadrant pain. The attending ordered a STAT CT, which showed perforated appendicitis. At about 10:30 p.m., a nurse called the on-call surgeon covering the patient for the weekend, who was not a party to the action, and advised of the CT findings and the patient’s condition. The on-call surgeon ordered that the patient be given nothing by mouth in anticipation of surgery and scheduled the surgery for Monday morning.
On Monday morning, FKC&S’s client took the patient to the operating room (OR) for a laparoscopy which revealed that her bowel was significantly damaged. Accordingly, he converted her to a laparotomy, during which he removed the right colon and about two feet of small bowel due to the extensive nature of the infection and resultant tissue damage. Post-operatively, the patient complained of chronic uncontrollable diarrhea that have limited her activities and life’s enjoyment ever since.
The three issues raised by the plaintiff’s expert regarding FKC&S’s client’s care were: (1) whether he should have ordered a repeat CT scan on June 4; (2) whether there was a delay in performing surgery; and (3) whether a different operation should have been performed – specifically, a simple appendectomy.
In thoroughly analyzing the medical records, and with the assistance of an expert in colorectal surgery, Collins established that there was no indication for FKC&S’s client to order or recommend a repeat CT scan on June 4. He also emphasized to the jury that the client did not participate in the decision to schedule the surgery; rather, that decision was made by the covering on-call surgeon, who elected to operate the following morning.
Additionally, Collins argued that the plaintiff’s experts in infectious disease and colorectal surgery presented inconsistent positions. The infectious disease expert testified to the extensive damage caused by the perforation, while the colorectal surgery expert minimized the severity by suggesting a simple appendectomy would have been sufficient. In response, Collins relied on the client’s testimony, the operative report describing the condition of the bowel and the testimony of the defense’s colorectal surgery expert.
The jury ultimately found that FKC&S’s client did not depart from the accepted standard of care in treating the patient.