$1,710,000.00 Verdict – Stomach Perforated During Endoscopy Procedure

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Frenchman v. Westchester Medical Center

Improper placement of a percutaneous endoscopic gastrostomy/jejunostomy tube perforated the decedent’s stomach resulting in emergency surgery and eight months of hospitalization, and death.

The published verdict from verdictsearch.com:

On Oct. 3, 2001, plaintiff’s decedent , a retiree who performed part-time consulting work, underwent open heart surgery that included replacement of a tricuspid valve. The procedure was performed by Dr. Richard Moggio, at Westchester Medical Center, in Valhalla. Moggio was assisted by Dr. Howard Axelrod. The decedent’s postoperative care was rendered by Moggio, who was assisted by Dr. Ron Smith and several other doctors.

The decedent was suffering difficulty breathing and swallowing, and Moggio and Smith determined that the difficulties were preventing the decedent’s adequate intake of nutrition. Thus, on Oct. 25, 2001, the decdent underwent implantation of a percutaneous endoscopic gastrostomy/jejunostomy tube. The tube was inserted by an attending gastroenterologist, Dr. David Wolf, with the help of a gastrointestinal resident or fellow, Dr. Sylvan, who was employed by Westchester Medical Center. The next day, the decedent was cleared to receive tube feedings, and Wolf signed off of the case.

On Nov. 5, 2001, a chest X-ray revealed an abnormal condition: the presence of free air under the decedent’s diaphragm. A physician’s assistant ordered an abdominal X-ray to follow up on the finding, and the X-ray revealed another abnormal finding: a large pneumoperitoneum–essentially a body of free air in the abdomen. The floor was notified of the pneumoperitoneum, which persisted through the remainder of the decedent’s admission.

Eight days later, on Nov. 13, the nursing staff noted that the decedent’s abdomen was slightly distended. A week later, on Nov. 18, a second abdominal X-ray confirmed the prior diagnosis of a pneumoperitoneum.

On Nov. 20, 2001, the decedent was discharged to Burke Rehabilitation Center, in White Plains. Within hours of his arrival, doctors determined that he was febrile and suffering respiratory distress. He was immediately placed in an ambulance and transported to White Plains [N.Y.] Hospital Center, in critical condition. At the hospital, physicians and emergency-room personnel found him to be in respiratory distress and possibly suffering peritonitis. The emergency room’s records also noted that his abdomen was distended and that the PEG/PEJ tube was surrounded by a colostomy bag that was drainingabdominal fluid, which doctors determined to be ascites–a large accumulation of fluid in the patient’s abdomen. During the early morning hours of Nov. 22, 20001, the decedent underwent an abdominal X-ray and CT scan. The tests’ results confirmed that the tube had become displaced and that the decedent had sustained a perforation of his stomach.

Later that day, emergency surgery was performed to repair the perforation. Although the decedent was not expected to survive beyond the first night, he did manage to survive. His condition waxed and waned during the ensuing months. Ultimately, he arrested and died about eight months later, on July 6, 2002.

The decedent’s widow, acting individually and as administratrix of her husband’s estate, sued Westchester Medical Center; the facility’s operator, Westchester County Health Care Corp.; Moggio; Smith; Sylvan; Wolf; and another doctor, Robert Klein. The plaintiffs alleged that Sylvan and Wolf failed to properly insert the PEG/PEJ tube, that Moggio and Smith erred by requesting the insertion of the tube, that the doctors’ actions constituted medical malpractice, and that the remaining parties were vicariously liable for the doctors’ actions.

Plaintiffs’ counsel subsequently discontinued the claims against Klein and Sylvan. The matter proceeded to a trial against the remaining defendants.

Plaintiffs’ counsel claimed that the PEG/PEJ tube was not properly inserted and that, as a result, it caused a perforation of the decedent’s stomach.He contended that the defendants never performed tests or ordered a gastrointestinal consult to rule out a possible perforation of the decedent’s stomach. He claimed that the decedent was improperly discharged, given the improper displacement of the tube and the fact that he was suffering pneumoperitoneum.

Plaintiffs’ counsel also claimed that Moggio and Smith should not have requested a PEG/PEJ tube because the decedent was suffering moderate-to-severe ascites. She further claimed that Wolf was negligent in recommending and performing the intubation because of the decedent’s ascites, by not first removing the ascites from the area in which the tube was ultimately placed, and by signing off of the case and not continuing to follow the decedent, especially in light of his the presence of ascites in the area in which the tube was placed.

The decedent’s counsel contended that, after the tube was placed, serous-sanguinous fluid began leaking from around the outside of the tube, that the bandages from around the tube were soaked, that a colostomy bag had to be placed around the outside of the tube to collect all of the fluid, and that the attending physicians and nursing staff were aware of this drainage but did not address it. She argued that the decedent’s condition on Nov. 20 should have been diagnosed and treated days–even weeks–before his discharge from Westchester Medical Center, and that it was a departure to discharge him to Burke Rehabilitation Center, given his poor condition.

Defense counsel contended that the tube was properly placed, that the postoperative care was appropriate, that theperforation was a complication of the intubation procedure, that the decedent did not suffer peritonitis, that he was extremely sick as a result of unrelated causes, that his death was not related to the tube placement or perforation, and that he somehow sustained the tear or perforation of his stomach during the few hours after he left the defendants’ care.

Plaintiffs’ counsel claimed that the decedent sustained a perforation of his stomach and that, as a result, he suffered peritonitis and a pneumoperitoneum. T he decedent underwent emergency surgery, and his hospitalization lasted about eight months. He ultimately suffered cardiac arrest. He died July 6, 2002, at age 68. He was survived by his wife and a 24-year-old daughter.

The decedent’s estate sought recovery of wrongful-death damages that included $3 million for the decedent’s pain and suffering, $335,000 for its medical expenses, $15,000 for its funeral expenses, and $1,324,000 to $2,684,000 in economic damages. The decedent’s wife sought recovery of a total of $500,000 to $750,000 for her loss of companionship.

Defense counsel argued that the claim for economic damages was speculative.

The jury rendered a mixed verdict. Westchester Medical Center and Westchester County Health Care were assigned a total of 60-percent liability; Moggio was assigned 25-percent liability; Smith was assigned 15-percent liability; and Wolf was not found liable. The jury found that the plaintiffs’ damages totaled $1.71 million.