The Massachusetts Appeals Court, in its opinion filed on February 26, 2020, stated in a hiatal hernia surgical repair medical malpractice wrongful death case: “In denying the defendants’ request for new trial or judgment notwithstanding the verdict, the judge found that the jury’s verdict of gross negligence “was reasonably justified by the evidence that Dr. Ameri proceeded to use the tacker in this surgery despite the explicit contraindication. It could reasonably be found that he voluntarily subjected Laura Parsons to an obvious risk when there were alternatives to the use of the tacker.” For this reason, he declined to disturb the jury’s finding of gross negligence … The primary issue in this appeal is whether the evidence supported the jury’s finding that the physician’s actions amounted to gross negligence, for which the jury awarded punitive damages of $2.5 million. We affirm.”
The Underlying Facts
The defendant surgeon performed laparoscopic hiatal hernia repair surgery on the decedent during which he attached a mesh closure to the decedent’s diaphragm with a medical device called the Ethicon Securestrap, which is used during hernia repair surgery to attach prosthetic materials to soft tissue. Commonly referred to as a “tacker,” the device attaches absorbable “tacks” (also called “straps” or “fasteners”) through mesh into tissue. On their own, the tacks are approximately five millimeters in length, but at the time of insertion, the tacker presses them as much as 6.7 millimeters into the tissue.
The manufacturer’s instructions for the tacker included several cautions. A minimum tissue thickness was required, and use of the device was contraindicated if the total distance from the surface of the tissue to any underlying bone, vessel, or organ was less than 6.7 millimeters. Moreover, it should not be used to insert tacks “in the diaphragm in the vicinity of the pericardium, aorta, or inferior vena cava during diaphragmatic hernia repair.”
The defendant surgeon testified that although he understood the contraindications associated with the tacker, the tacker was nonetheless “almost always” used to fix the mesh to the edge of the diaphragm because the crura is so thick that the tacks were “not going to get anywhere beyond this thickness.” The defendant surgeon testified that he did not measure the thickness of the decedent’s diaphragm crura at the time of the surgery, but he “ballpark[ed]” its thickness to be ten millimeters, thick enough to withstand the five millimeter tacks without allowing them to pierce through the diaphragm. He agreed that puncturing the pericardium or the myocardium, the heart muscle itself, during hiatal hernia repair surgery would be below the standard of care expected of the average qualified general surgeon.
After the surgery, the decedent’s vital signs were stable. Two days after the surgery, however, she complained that her heart was racing and that she had abdominal pain. An echocardiogram showed the presence of excess fluid in the decedent’s pericardium near where the tacks were placed and her heart rate was very elevated and irregular. She was administered blood-thinning medication and morphine. Approximately one hour later, the decedent went into cardiac arrest. Cardiopulmonary resuscitation (CPR) was performed, but efforts to resuscitate her were unsuccessful.
A Massachusetts medical malpractice wrongful death lawsuit was subsequently filed against the surgeon and a nurse. The Massachusetts medical malpractice jury awarded $100,000 to the estate for the decedent’s conscious pain and suffering; $1.5 million to the plaintiff in his individual capacity; $500,000 each to the decedent’s son and daughter for past and future loss of consortium; and, $2.5 million punitive damages against the defendant surgeon for his gross negligence. The defendants appealed.
Massachusetts Appeals Court Decision
The Massachusetts Appeals Court stated that the jury heard testimony from expert witnesses and the defendants, and they viewed photographs from the decedent’s surgery and were led through the preliminary and final autopsy reports in detail. The plaintiff’s expert witness offered his opinion that the defendant surgeon caused the decedent’s death by puncturing her heart with the surgical tacker, causing her pericardium to fill with fluid and constrict her heart, and that the decedent would not have died if the defendant surgeon had provided the standard of care of the average qualified surgeon. His opinion was consistent with the final autopsy report, which found “puncture marks on the posterior aspect of the heart” and “acute inflammation and hemorrhage likely occurring at the time of hiatal hernia repair,” and concluded that the cause of death was “a combination of pericarditis, myocarditis, and hemopericardium with tamponade, leading to cardiac arrest.”
The Massachusetts Appeals Court held: “The jury’s conclusion that in the course of the surgery [the defendant surgeon] punctured [the decedent’s] pericardium, leading to internal bleeding and ultimately causing her death, was reasonable and supported by the evidence. The judge did not abuse his discretion in denying a new trial on the issues of negligence and causation.”
With regard to gross negligence, the Massachusetts Appeals Court stated that gross negligence is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. It is a heedless and palpable violation of legal duty respecting the rights of others. Gross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence. The voluntary incurring of obvious risk and persistence in a palpably negligent course of conduct over an appreciable period of time are among the more common indicia of gross negligence. Moreover, when the injury likely to ensue from a failure to do that which ought to be done is a fatal or very serious one, what otherwise would be a lack of ordinary care may be found to be gross negligence.
In the present case, the Massachusetts Appeals Court held: “The jury could reasonably conclude that [the defendant surgeon’s] decision to use the tacker in close proximity to [the decedent’s] pericardium exhibited the hallmarks of gross negligence: he voluntarily incurred an obvious risk, in circumstances where the failure to exercise reasonable care could be fatal. The plaintiff’s expert  testified that given [the decedent’s] anatomy and the tacker’s contraindications, use of the tacker constituted an obvious risk. In the photographs taken during surgery, [the plaintiff’s expert] noted that [the defendant surgeon] had placed some tacks “concerningly” close to the pericardium. The point where [the defendant surgeon] inserted the tacks, which extend 6.7 millimeters when employed, was “the thickness of a diaphragm” away from the heart, which could be as little as three to five millimeters. [The plaintiff’s expert] explained that the risk is obvious to surgeons performing this procedure “because you can actually see the heart beating through the diaphragm right where you’re working.” In these circumstances, the jury could take [the defendant surgeon’s] admission that he did not measure the thickness of [the decedent’s] diaphragm crura at the time of the surgery, instead estimating it to be approximately ten millimeters, as indicative of gross negligence. Moreover, the dangers associated with using the tacker were well known to the average qualified surgeon, even without the manufacturer’s warning: “the concern is that when you fire one of these pressure-loaded fasteners, that it can penetrate through and hit structures on the other side of the diaphragm . . . and cause life-threatening injury.” Witnesses for both parties agreed that alternative methods were available. Exacerbating [the defendant surgeon’s] negligence was the fact the manufacturer’s contraindications warned against using the tacker exactly where he used it: “in the vicinity of the pericardium, aorta, or inferior vena cava during diaphragmatic hernia repair.” The judge, in denying the defendants’ posttrial motion, cited this fact as the reason he submitted the question of gross negligence to the jury: “[The defendant surgeon] ignored the specific direction given for use of the instrument” … The jury could have accepted the defense theory that the manufacturer’s warnings could be dismissed and that [the defendant surgeon] did not injure [the decedent] in any way. However, the evidence also permitted the jury to find, as they did, that [the defendant surgeon] heedlessly ignored the manufacture’s warnings, with catastrophic results.”
The Massachusetts Appeals Court held: “The evidence, including the plaintiff’s expert’s testimony, provided the jury with a reasonable basis to distinguish ordinary negligence from gross negligence in this case. It was uncontested that injuring the patient’s pericardium or heart muscle during hiatal hernia repair surgery would violate the standard of care for the average qualified surgeon. The evidence as a whole permitted the jury to find that [the defendant surgeon’s] use of the tacker in [the decedent’s] surgery manifested many of the common indicia of gross negligence.”
Source Parsons v. Ameri, No. 18-P-1373.
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