Wilcoxen Callaham LLP partner Michelle Jenni recently won a trial verdict for her client when she represented a 46-year-old wife and mother of three (14, 17, 19) who died in 2018 following a gastric bypass surgery performed by Dr. Ruby Gatschet. The patient had a history of an umbilical hernia which was asymptomatic, but very visible. She and her husband inquired whether the surgeon could repair the hernia at the time of the gastric bypass surgery. They were told that it would be better to defer the repair until about 6 months after gastric bypass surgery because repair of the hernia would require the use of mesh. They were informed that when mesh is inserted during the gastric bypass surgery it would create an increased risk of infection, so it was better to wait.
The surgery was performed on August 10, 2018. Once the surgeon entered the abdomen, she needed to lift the omentum (an apron of tissue covering the abdominal organs) to expose the surgical field. The surgeon discovered that she was unable to lift the omentum because a large part of it was herniated through the umbilical (belly button) hernia opening and entrapped. She then pulled the large portion of omentum out of the hernia sac, leaving a defect. The surgeon then proceeded with the gastric bypass surgery but did nothing to repair the hernia defect that had been left by removing the omentum. The decedent was discharged home the next day, August 11, 2018.
During the days following the surgery, the patient had pain, but she and her husband chalked it up to post-operative pain and she was able to control it with pain medications. Saturday, August 18, 2018 was decedent’s 47th birthday. Her husband checked on her, got her pain meds and left her seemingly fine watching TV while he left to go the store to get some birthday decorations for a little family celebration that evening. He was at the store, about 15 minutes after leaving, when he got a call from his 14-year-old son saying that his mom had fallen, and he couldn’t get her up. The son went and got his brother and sister. Sister noticed that mom was not responding and called 911 and her dad. Dad dropped everything and rushed home to find his daughter performing CPR on mom. He took over until paramedics arrived. Decedent was pronounced dead at the scene. An autopsy revealed that 15 cm of her small intestine had herniated through the defect left at the time of surgery. The intestine had become entrapped, much like the omentum that was previously removed, was strangulated, and became necrotic causing sepsis and ultimately death.
The issue was whether the failure of the surgeon to repair the defect at the time of surgery was below the standard of care.
In August 2022 Michelle Jenni sent the defense an Offer to Compromise in the amount of $499,999. No consent for the Offer to Compromise was received, and there was no offer from the defendant prior to trial. The case went to trial and the jury found liability on the part of the surgeon. The jury awarded the victim $1,082,437, of which $550,000 was for non-economic damages. The remainder was for loss of household services as well as funeral and burial expenses. The $550,000 will be reduced to the pre 2023 cap of $250,000.
