Alaska Supreme Court Affirms Plastic Surgeon’s Loss Of His Own Medical Malpractice Case

162017_132140396847214_292624_nOn November 25, 2015, the Supreme Court of the State of Alaska (“Alaska Supreme Court”) affirmed the lower court’s grant of summary judgment to the medical malpractice defendants in a medical malpractice case filed by an Alaska plastic surgeon that alleged that the defendants were medically negligent in performing his cardiac surgery and that such negligence caused him to be injured.

The Alaska Supreme Court held that the plaintiff’s expert witness’s testimony that certain surgical procedures performed on the plaintiff were suboptimal and that patients generally tend to have better outcomes when other procedures are followed was insufficient to raise any issue of material fact regarding whether the medical malpractice defendants had violated the standard of care in a way that caused injury to this particular plaintiff.

The Underlying Facts

The plaintiff suffered a heart attack in September 2009 and was admitted to the hospital for emergency bypass surgery. The anesthesiologist who  administered anesthesia during the six-hour bypass surgery was named as one of the Alaska medical malpractice defendants.

After the anesthesiologist intubated the plaintiff on his second attempt and used the drug propofol to induce anesthesia, the plaintiff’s blood pressure dropped precipitously but the plaintiff did not suffer complete cardiac arrest. The surgeon performed CPR while additional drugs were administered to counteract the drop in blood pressure. The plaintiff’s blood pressure ultimately stabilized and the surgery continued.

The anesthesiologist then placed a transesophageal echo (TEE) probe in the plaintiff’s esophagus to take ultrasonographic pictures of his heart and obtain diagnostic information about its condition. The TEE probe soon failed, and the anesthesiologist notified the surgeon of the failure. Nonetheless, the TEE probe was not replaced and the surgeon continued with the surgery during which he performed a six-vessel bypass.

The plaintiff subsequently filed his medical malpractice case in Alaska, alleging that the defendants’ medical negligence caused injury to and loss of myocardium with severely compromised cardiac function and reserve, injury to his brain with noticeable loss of short term memory function as demonstrated on testing, severe de-conditioning, loss of calcium, with associated muscoloskeletal problems, displaced sternal incision/wound with prolonged healing and continued pain, and hemorrhoids requiring surgery and with ongoing problems, inter alia.

In response to the defendants’ motion for summary judgment, the plaintiff’s expert, who is a board-certified anesthesiologist, stated in his affidavit that the defendant anesthesiologist’s “treatment, care[,] and services . . . were suboptimal and contributed to [the plaintiff’s] prolonged and delayed recovery,” and that “in all medical probability,” (1) “[p]ropofol was not the optimal choice” of induction agent and its use “led directly to . . . [the plaintiff’s] cardiac arrest (2) the “difficulty in securing [the plaintiff’s] airway . . . directly contributed to [his] cardiac arrest,” and (3) the “amount of damage to [the plaintiff’s] heart, [the] time to hook up the by-pass machine, [and] the extent of surgery performed would have been reduced by the use of a TEE [probe] throughout his surgery.”

During the plaintiff’s expert’s subsequent deposition, he testified that the use of propofol and the failure to intubate the plaintiff on the first attempt were “suboptimal,” but he refused to say that either fell below the standard of care. The plaintiff’s expert testified that the failure to replace the TEE probe fell below the standard of care and that cardiac patients generally tend to have better outcomes when a TEE probe is used during surgery, but he repeatedly declined to draw any conclusions about whether the lack of a TEE probe caused harm to the plaintiff specifically, explaining, “I think that goes a little beyond my area of expertise.”

The plaintiff’s expert also testified during his deposition that his opinion that the plaintiff’s outcome would have been improved by the use of a TEE probe throughout surgery was based on his “generalized understanding” of the utility of TEE probes — not his specific understanding of the plaintiff’s situation.

The Alaska Supreme Court agreed with the lower court’s ruling that the plaintiff’s expert failed to causally connect the TEE shutdown and the physician’s decision to proceed without a spare with any injury suffered by the plaintiff (“Dr. Yun was opining only that patients in general tend to have better outcomes when a TEE probe is used — not that the failure to use a working TEE probe throughout the surgery harmed Dr. Brandner specifically”).

The Alaska Supreme Court stated that the plaintiff’s expert testified that “‘patients who have a TEE probe used in their cardiac surgery tend to do better than those who do not’ — in other words, the chances of a better outcome increase when a TEE probe is used. But Dr. Yun provided no specific figures about what percentage of patients do better, in which ways, and by how much. Without this information, Dr. Yun’s statements about general patient outcomes provides no support for Dr. Brandner’s specific claim that his recovery would have been better had a working TEE probe been used throughout his surgery.”

The Alaska Supreme Court held, “the superior court was correct to conclude that Dr. Yun’s testimony provided no evidence that the failure to use a working TEE probe was the likely cause of Dr. Brandner’s alleged injuries. Dr. Brandner pointed to no other evidence of causation in his opposition to summary judgment, nor does he cite any such evidence on appeal. We therefore affirm the grant of summary judgment in the providers’ favor.”

Source Brandner v. Pease, et al., Supreme Court No. S-15633.

If you or a family member were harmed by medical negligence in Alaska, you should promptly seek the advice of an Alaska medical malpractice attorney who may investigate your medical malpractice claim for you and represent you in an Alaska medical malpractice case, if appropriate.

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This entry was posted on Tuesday, December 29th, 2015 at 5:05 am. Both comments and pings are currently closed.

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