April 26, 2021

In its Memorandum And Order filed on March 5, 2021, the United States District Court for the District of Connecticut determined that VA doctors negligently injured a patient during mesh hernia surgery and negligently failed to discover the injury during the surgery, awarding $3,270,278.22 in economic damages to the patient; $5,000,000 in noneconomic damages to the patient; and, $1,200,000 in damages for loss of consortium to the patient’s wife, for a total award of $9,470,278.22.

The Underlying Facts

In 2015, VA doctors diagnosed Mr. Eric March as having a ventral hernia and recommended a laparoscopic ventral hernia repair procedure. On June 15, 2015, Dr. Schlessel, an attending physician, and Dr. Lujic, a fourth-year medical resident, performed a laparoscopic ventral hernia repair with mesh at the VA medical center. At all relevant times, Drs. Schlessel and Lujic were acting as agents/employees of the VA.

Mr. March’s surgery involved the removal of adhesions, which are formations of scar tissue that stick the bowel to the abdominal wall. The removal of adhesions can involve sharp dissection, blunt dissection, and/or electrocautery, which uses heat to burn away adhesions. Electrocautery, the most dangerous method of removing, or “lysing,” adhesions, is the method of last resort. The post-operative note stated that all of the above methods – scissors, electrocautery, and blunt dissection – were used to remove the adhesions in Mr. March’s abdomen.

Though Dr. Schlessel and Dr. Lujic both testified that they did not remember the specifics of the procedure performed on Mr. March, they relied on the postoperative note and their general practices to explain their roles in Mr. March’s procedure. During the procedure, Dr. Lujic handled the instruments and physically performed the operation, while Dr. Schlessel supervised, providing direction and input.

Dr. Lujic testified that during a laparoscopic ventral hernia repair procedure, the goal is to avoid injury to the small bowel at all costs. He testified that if an injury occurs during the procedure, the goal is to identify the injury and fix it during the operation. He testified further that he looked for injuries to the bowel at “[e]very step” of lysing the adhesions. To check for injuries, both Drs. Lujic and Schlessel testified that their procedure was to “run the bowel,” or, as Dr. Lujic testified, to look at it from both sides to see all portions of the small bowel involved in the surgery. As both Dr. Lujic and Dr. Schlessel testified, a thermal injury, or an injury resulting from electrocautery, can be caused by heat being transferred from one area of the body to another, through a process called “arcing.” Dr. Schlessel testified that a burn injury can progress, over the course of several days, into a complete perforation of the bowel wall.

The postoperative note dictated by Dr. Lujic does not mention “running the bowel” at the end of the procedure, which Dr. Lujic conceded at trial. Dr. Lujic testified that he inspected the bowel while he removed the adhesions, but not again after that. Dr. Lujic testified further that a careful, thorough inspection should uncover any injuries to the bowel. He also agreed at trial that, during Mr. March’s procedure, either he did not look at the area of bowel that was injured or looked at the area and did not see the injury.

Dr. Schlessel agreed that the most likely explanation for Mr. March’s later injuries was an undiagnosed injury to his bowel during the laparoscopic ventral hernia repair procedure but he was “quite sure” there was not a bowel injury. Dr. Schlessel also testified that Dr. Lujic was “wrong” when he testified that there was no final inspection of the bowel, and that he must have been “recollecting incorrectly” if he so testified. He testified further that if he and Dr. Lujic did not inspect the abdomen at the end of the procedure, this would be a violation of the standard of care.

The federal judge stated: “all of the surgeons agreed that it is the standard of care to inspect the bowel carefully during and after the removal of adhesions, as well as to minimize the use of electrocautery, and be aware of the risks of thermal injury when electrocautery is used. Moreover, Dr. Schlessel and Dr. Smith both testified that the standard of care requires a third, or final, inspection of the bowel before closing the abdomen … three of the four experts agree that the standard of care requires a surgeon to inspect the bowel carefully for evidence of a bowel injury before closing the abdomen at the end of the procedure. Thus, by a preponderance of the evidence, the standard of care requires a careful inspection of the bowel before closing the abdomen at the end of the procedure.”

“Though neither Dr. Lujic or Dr. Schlessel recalled Mr. March’s procedure with specificity, given Dr. Lujic’s testimony that he did not do a final inspection of the bowel as a matter of custom or practice and the absence of any reference to such an inspection in the postoperative note, it is more likely than not that no final inspection occurred … it is not a deviation from the standard of care for these surgeons to have failed to identify each and every possible injury to Mr. March’s bowel. But, as discussed below, the preponderance of the evidence shows that the failure to detect the particular injury that is the root of Mr. March’s current physical condition, through a careful inspection of the bowel, is a deviation from the standard of care … Plaintiffs are not required to prove that the injury would certainly have been detected by this final inspection, only that this failure, a violation of the standard of care as discussed above, more likely than not caused Mr. March’s injuries … it is more likely than not that the failure of Drs. Schlessel and Lujic to conduct a final inspection of the bowel and identify thermal injuries caused the injuries that resulted in Mr. March presenting to Manchester on June 23, and the surgeries and permanent injuries that followed.”

Source March v. United States of America, No. 3:17-cv-2028 (VAB).

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