Facts

Claimant Mahmood Jouharizadeh, 48, was diagnosed with cancer of the sigmoid colon. He underwent surgery to remove the tumor as well as portions of the colon at each side of the tumor. Kaiser employee, Dr. David Litvak, performed the procedure at Kaiser Permanente Lakeview Hospital. Dr. Litvak performed a hand assisted laparoscopic colectomy.

As part of this procedure, an instrument called a harmonic scalpel is used to separate the sigmoid colon from where it is attached to the walls of the abdominal cavity. This instrument is hot, it has a cutting function and cauterizes as well. A recognized risk of using the instrument is that it can burn the colon with prolonged direct contact. Therefore, it is important that the surgeon protects the colon from the direct contact with the harmonic scalpel and carefully inspects the colon repeatedly. In the event that such a burn occurs, the tissue of the colon in the areas becomes blanched so that the burn is visible since it is different in colon from surrounding colon tissue. If a burn occurs and it goes through the wall of the colon, it can be simply repaired with sutures.

CLAIMANT'S CONTENTIONS:
The claimant contended that Dr. Litvak negligently failed to recognize that he had burned the area of the colon outside of the area that was removed in surgery. As a result, post-operatively, the contents of the colon began to leak from the hole caused by the burn, into the peritoneal cavity. The claimant developed peritonitis and a life threatening sepsis. He was required to undergo a second surgery to repair the leak. An additional portion of his colon had to be removed and a colostomy bag had to be installed. He had to use a colostomy bag for over 10 months. In addition, due to the second surgery, the claimant was left with a scar from just below his chest to the bottom of his abdomen.

RESPONDENT'S CONTENTIONS:
Kaiser contended that this type of injury is a risk of this surgery and that there was no malpractice.

Settlement Discussions

The claimants offered to settle for $175,000 prior to arbitration. No offers were made by respondents.

Damages

Brenda Jouharizadeh, the claimant's wife claimed for loss of consortium.

Result

Hon. James Smith, retired, awarded Mahmood Jouharizadeh damages for $259,952 ($9,952 economic; $250,000 MICRA limits). Brenda Jouharizadeh was awarded $30,000 for loss of consortium.