June 11, 2019

In its unpublished opinion filed on May 28, 2019, the State of Minnesota Court of Appeals (“Minnesota Appellate Court”) affirmed a Minnesota medical malpractice verdict in favor of a woman who lost her eye allegedly as a result of the failure to adhere to sterile procedures before and during eye surgery. The Minnesota medical malpractice jury had awarded $2,704,506.91 to the woman for the loss of her eye and $470,000 to her husband for his loss of consortium claim.

The woman had surgery in 2011 to repair a macular hole in her left eye, a condition that causes some vision impairment. Following the surgery, she developed endophthalmitis, an infection that caused enough damage that the eye eventually had to be removed.

The woman alleged in her Minnesota medical malpractice lawsuit that breaks in sterile technique during the preparation and use of a bottle of balanced salt solution (BSS) caused two bacteria species, Pseudomonas aeruginosa and Serratia marcescens, to be introduced into the plaintiff’s left eye which caused the infection. The defendant hospital argued that there was no breach of care, or if there was, that the plaintiffs could not prove the bacteria that caused the infection was introduced through the surgery.

The defendant appealed the jury’s verdict in favor of the plaintiffs, arguing that the plaintiffs did not present sufficient evidence to allow a reasonable jury to find a chain of causation from the hospital’s employees’ actions to the plaintiff’s injury.

The Minnesota Appellate Court stated that expert testimony in a medical malpractice case must be “more than consistent with” a simple recitation of a plaintiff’s theory of causation; it must demonstrate a reasonable probability that the defendant’s negligence was the proximate cause of the injury. The guiding principle is that juries are not permitted to speculate as to the possible causes of a plaintiff’s injury.

The Minnesota Appellate Court stated, “We simply review the expert testimony to determine if there is sufficient factual foundation to support the expert’s opinion that it is more likely than not that the defendant’s negligence caused the injury … And here there was sufficient factual foundation.”

One of the plaintiff’s medical experts testified during trial that the disease moved rapidly after surgery and “presented in this dramatic, explosive way,” suggesting that “a significant load of microorganisms were actually directly put into the eye”; there was a breach in sterile technique in preparing the solution used to irrigate the eye; and this breach consisted of a non-sterile sticker label being placed on a sterile cap and the surgery team relying on the assumption that the cap was sterile.

Another of the plaintiff’s experts testified that the day after the surgery, the plaintiff could only see light with the eye that had been operated on, whereas normally a patient would at least be able to count fingers with that eye; the eye also had abnormally elevated pressure; and the same day, it was discovered that the eye contained a collection of white cells, known as hypopyon, meaning that the plaintiff had endophthalmitis. And on the second day after the surgery: these symptoms did not improve despite the plaintiff receiving an injection of antibiotics directly into the infected eye; and there was “fibrin and pus in the anterior chamber,” indicating a very aggressive infection. The plaintiff’s expert noted that the two main types of bacteria that caused the infection, “Serratia marcescens and Pseudomonas aeruginosa” are “very, very toxic organisms. They’re not the typical. They’re the contaminant.” He also opined, “These bugs, as — as you’ll hear, can be everywhere. But the one place they can never be is in an operating room. They can’t be. . . . They can’t be put in those situations because, if they do, you get infected like this.” He further testified that: these bacteria do not live together in eye drops or makeup; there has never been a reported case of that occurring; this is because of preservatives in those products; and while Pseudomonas can be found in these products maybe one percent of the time, Serratia simply “doesn’t live there.” The expert concluded his opinion that the bacteria could not have been introduced from eye drops or makeup by stating, “When I see these bugs, it’s a contaminant. There was a breach. There is a breach somewhere that allowed these opportunistic bugs to get into the system, and that breach is the cause of those bugs.” The expert also testified that this was his opinion to a reasonable medical certainty even before he was shown the evidence of an actual breach in sterile procedure in this case.

The Minnesota Appellate Court held: “This testimony is sufficient to establish a prima facie case for the element of causation. The mere fact that the doctors could not guarantee that the seal was contaminated is insufficient to overturn a jury verdict.”

Source Shellum vs. Fairview Health Services d/b/a Fairview Southdale Hospital, A18-1516.

If you or a loved one may have been injured (or worse) as a result of medical negligence in Minnesota or in another U.S. state, you should promptly find a Minnesota medical malpractice attorney, or a medical malpractice attorney in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.

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