Facts

In July 2004, plaintiff Sharyn Zachary, age 49, was referred by her primary care physician, Royal Dean, M.D., to gastroenterologist Moe Amadpour, M.D., for evaluation of severe gastroesophageal reflux disease (GERD). At the time, the plaintiff reported a chronic history of GERD, which was not successfully alleviated by a number of different medications. The plaintiff also complained of a constant sore throat, as well as pressure and tightness in her neck and jaw. She additionally reported a history of needing to sleep upright in an easy chair to avoid reflux at night.

The plaintiff's medical history included type 2-diabetes mellitus, intermittent asthma, hypertension and elevated cholesterol. The plaintiff stood 5'3" tall, weighed approximately 195 pounds, and had a multi-year history of marked weight gain. The plaintiff had expressed a desire to lose weight and had attempted supervised weight loss on prior occasions without success.

Following Dr. Amadpour's consultation, the plaintiff underwent pH monitoring, which confirmed her severe GERD. Dr. Amadpour then referred the plaintiff to Dr. Peter Crookes for a surgical evaluation.

On Oct. 22, 2004, the plaintiff saw Dr. Crookes for this consultation. At the time, the plaintiff weighed 197 pounds, with her calculated Body Mass Index (BMI) at just under 36. Dr. Crookes concluded that the plaintiff might be a suitable surgical candidate for bariatric surgery.

Dr. Crookes was concerned about performing Nissen Fundoplication surgery, as the medical literature reported that it was not a durable procedure for obese patients, with a 30 percent failure rate. Therefore, Dr. Crookes requested that the plaintiff attend a bariatric surgery seminar so she could learn more about alternative surgical intervention.

The plaintiff attended this seminar and learned about different surgical approaches, including the potential risks, complications and benefits, as well as alternative treatment options. Following this seminar, she expressed interest in bariatric surgical intervention.

On Dec. 13, 2004, the plaintiff was seen by Dr. Howard Kaufman for further evaluation, as he specializes in less invasive laparoscopic bariatric procedures. At the time, she weighed 205 pounds, with her BMI calculated at 36. The plaintiff's comorbidities remained. During this office visit, Dr. Kaufman discussed the nature, benefits, risks and complications of the proposed surgery – a Roux-en-Y procedure – including the possibility of recurrent reflux, bowel obstruction and infection.

On Jan. 10, 2005, the plaintiff presented for a second office visit with Dr. Kaufman. Following this meeting, the plaintiff concluded that the Roux-en-Y procedure was the best option for her. The plaintiff also signed a detailed "Consent for Gastric Bypass Surgery" document and completed a written informed consent test. She also previously underwent an extensive pre-surgical workup, which indicated no contraindications to bariatric surgery from a medical or psychiatric perspective.

On Jan. 13, 2005, Dr. Kaufman performed the Roux-en-Y procedure at USC University Hospital. The surgery transpired without any complications. On the first postoperative day, the plaintiff underwent a video swallow study, which did not show any leakage or gastrointestinal obstruction. She remained at USC University Hospital until Jan. 15, 2005, when she was discharged home in stable medical condition with instructions to follow up with Dr. Kaufman. At the time of discharge, she was able to tolerate a clear liquid diet.

On Jan. 20, 2005, the plaintiff was seen for a scheduled office visit. At the time, the plaintiff reported that she felt better and had no heartburn or GERD. She ultimately progressed to a thickened diet but later reported abdominal pain and vomiting.

Dr. Kaufman saw the plaintiff on Jan. 26, 2005 and arranged another video swallow study, which now showed a partial obstruction. Dr. Kaufman planned for exploratory surgery if the plaintiff did not improve.

The plaintiff's complaints continued. Dr. Kaufman then performed exploratory surgery on the plaintiff at USC University Hospital on Jan. 27, 2005. The surgery revealed an intestinal obstruction, an enteroenterostomy obstruction, an inflamed omentum, and dense intra-abdominal adhesions. Dr. Kaufman resected the small bowel, repaired the enterotomies, resected the omentum, and lysed the adhesions. The plaintiff tolerated the procedure well.

Postoperatively, the plaintiff had a fairly complicated medical course, including a fever, infection and possible abscess formation. She was treated with antibiotics and drainage. The plaintiff also required vacuum-assisted compression for her abdominal incision wound. She remained at USC University Hospital until Feb. 23, 2005, when she was discharged home in stable medical condition.

Since undergoing bariatric surgery, the plaintiff has reportedly lost over 50 pounds and has regular bowel movements. Her diabetes and hypertension have been cured. Her cholesterol is still borderline high, however, she also claims to suffer from various complaints, including reflux, bloating and vomiting.

PLAINTIFFS' CONTENTIONS:
The plaintiffs contended that Dr. Crookes and Dr. Kaufman breached the standard of care and also committed fraud in connection with their surgical consultations. Specifically, Dr. Crookes and Dr. Kaufman, in conjunction with USC University Hospital, jointly operated a business (bariatric surgery program) whose purpose was to generate as much income as possible, including performing surgery that were not appropriate bariatric surgery candidates. The plaintiff was not a suitable bariatric surgical candidate as she was not significantly overweight (at most 77 pounds) and had not completed conservative therapy, including a formal weight loss program.

Dr. Crookes and Dr. Kaufman breached the standard of care by not referring the plaintiff to a physician who specializes in GERD. Following the bariatric surgery seminar, Dr. Crookes should have seen the plaintiff on a second occasion rather than refer her to Dr. Kaufman. Dr. Kaufman did not properly inform the plaintiff of the potential complications of gastric bypass procedure, as well as alternative treatment options. The plaintiff did not provide her informed consent to proceed with the Roux-en-Y procedure. Dr. Kaufman committed technical errors during the Roux-en-Y procedure, including placement of a stitch that caused a bowel obstruction by connecting the front and back walls of the small intestine. Dr. Kaufman did not timely initiate exploratory surgery to address the plaintiff's bowel obstruction. When repairing the bowel obstruction, Dr. Kaufman performed a "dirty" operation, as he should not have closed up the incision, which resulted in an intra-abdominal infection.

DEFENDANTS' CONTENTIONS:
Dr. Crookes and Dr. Kaufman contended that they each conformed to the standard of care through their consultation, care and treatment of the plaintiff. Specifically, when the plaintiff first presented to Dr. Crookes, she was morbidly obese considering her height, weight and associated comorbidities, including severe, unrelenting and disabling GERD that was not responding to medications, type 2 diabetes, hypertension and elevated cholesterol.

Following his consultation, Dr. Crookes appropriately considered the plaintiff to be a potential surgical candidate but not for the Nissen Fundoplication procedure, given its questionable durability and 30 percent failure rate in obese patients. Dr. Crookes appropriately referred the plaintiff to the USC bariatric surgery seminar, where she could learn more about bariatric surgical intervention, the risks and complications of such surgery, including bowel obstruction and infection, the need for dietary and other lifestyle modifications, and alternative treatment options. The plaintiff attended this seminar in October 2004. Upon conclusion of the seminar, the plaintiff expressed interest in laparoscopic gastric bypass surgery. Following this seminar, Dr. Crookes properly referred the plaintiff to Dr. Kaufman, as Dr. Crookes does not specialize in less invasive laparoscopic bariatric procedures. When the plaintiff first presented to Dr. Kaufman on Dec. 13, 2004, Dr. Kaufman appropriately considered her for the Roux-en-Y procedure, which is a preferred surgical option for such morbidly patients suffering from severe GERD.

The standard of care did not require that either Dr. Crookes or Dr. Kaufman refer the plaintiff to another gastroenterologist or any physician specializing in GERD. The plaintiff had already seen gastroenterologist Dr. Amadpour and demonstrated the inability to manage her debilitating GERD through conservative means. Further, Dr. Crookes is an internationally recognized expert in reflux disease. During his interactions with the plaintiff, Dr. Kaufman properly disclosed the nature, risks, complications and benefits of the Roux-en-Y procedure, including potential complications such as bowel obstruction and infection. Dr. Kaufman also discussed with the alternative treatment options. Before undergoing the Roux-en-Y surgery with Dr. Kaufman, the plaintiff was admittedly well informed about the details of this procedure and admitted to providing her written informed consent. The plaintiff was also appropriately cleared for surgery from a medical and psychiatric perspective.

At the time of the plaintiff's Roux-en-Y surgery, she met the National Institutes of Health guidelines as a bariatric surgery candidate, given her BMI and comorbidities. She was also an appropriate surgical candidate according to the prevailing standard of care. The NIH guidelines, as well as the standard of care, do not require that the patient attempt a formal non-surgical weight loss program before undergoing bariatric surgery. According to the pertinent weight loss studies, 99 percent of all patients fail such programs. Nevertheless, before seeing Dr. Crookes and Dr. Kaufman, the plaintiff had attempted such weight loss without success, including taking Phen-fen, undergoing a medically supervised weight loss program, and enrolling in the Jenny Craig diet program.

Dr. Kaufman performed the laparoscopic Roux-en-Y procedure in conformance with the standard of care. Dr. Kaufman did not encounter any unusual complications that would reflect a deviation from the standard of care. The plaintiff did not show any evidence of a bowel obstruction or other medical complication that should have delayed her Jan. 15, 2005 discharge. The plaintiff subsequently experienced a partial bowel obstruction, which is a known but acceptable risk of Roux-en-Y surgery. Further, this risk and others, including infection, abscess formation, adhesions and the need for surgical intervention, had been fully disclosed to the plaintiff on multiple occasions prior to her consenting to the Roux-en-Y bariatric surgery.

In conformance with the standard of care and with the patient’s informed consent, Dr. Kaufman timely and appropriately performed exploratory surgery on the plaintiff on Jan. 27, 2005. This surgery included resection of the small bowel and omentum, repair of the enterotomies, and lysing of adhesions. These surgical findings occur in the absence of negligence and do not evidence any deviation of the standard of care by Dr. Kaufman when performing the Roux-en-Y surgery. Further, the surgical findings indicated that adhesions, rather than a stitch, had caused the obstruction. It would have been essentially impossible for Dr. Kaufman to stitch the front and back walls of the small bowel together, given the surgical equipment employed.

The plaintiff's subsequent infection and adhesions are known and acceptable risks and complications that were fully disclosed to the patient prior to her consenting to bariatric surgery and do not represent a breach of the standard of care by Dr. Kaufman. The plaintiff's current alleged complaints do not evidence any deficient care provided by either Dr. Crookes or Dr. Kaufman. No surgery, including the Roux-en-Y procedure, can guarantee a perfect outcome. The plaintiff's current alleged complications are attributable to her non-compliance with the recommended lifestyle diet for bariatric surgery patients, including in both food content and the volume of food consumed at a given time. The plaintiff was fully aware of the need to adopt these dietary guidelines prior to giving her informed consent to proceed with Dr. Kaufman's Roux-en-Y surgery. The plaintiff admitted to not following up with lifetime care and monitoring as she had agreed to do in writing.

Settlement Discussions

Through offers to compromise pursuant to C.C.P. section 998, Dr. Crookes and Dr. Kaufman each agreed to waive their right to recover costs and to file a malicious prosecution action against the plaintiffs, in exchange for entry of dismissal with prejudice of the entire lawsuit. In response, plaintiff Sharyn Zachary served an offer to compromise for $200,000 to Dr. Crookes and to Dr. Kaufman, or $400,000 in total. Plaintiff Paul Zachary Jr. served his own offer to compromise for $49,999 to Dr. Crookes and to Dr. Kaufman, or $99,998 in total. The plaintiffs' demand at the start of trial was $250,000. There was no counter-offer from Dr. Crookes or from Dr. Kaufman.

Damages

$500,000 (non-economic); $20,000 (economic)

Result

Defense as to Dr. Crookes and Dr. Kaufman. A pretrial settlement was entered with the co-defendant hospital.

Other Information

According to plaintiff's counsel, there is a process offered in the bariatric surgery (weight reduction surgery) community that allows a hospital and bariatric surgeons to become known as a 'Center of Excellence' ("COE"). This is offered through an entity called the Surgical Review Corporation ("SRC"). Both the hospital and surgeons must submit an application to the SRC with information as to the surgeon's and hospital's training, education and experience in performing and supporting bariatric surgery both by laparotomy (open) and laparoscopy (closed). Dr Crookes became the director of the USC hospital bariatric surgery program in October 2004. An application was submitted on his behalf and behalf of Dr. Kaufman to become a COE. That application was subpoenaed (CCP 1987) for trial. The defendant doctors filed a motion objecting and quashing the request to produce the applications at trial. The objection was denied and the application was ordered to be produced by the doctors at trial. The application for each doctor was produced at trial which revealed that Dr. Kaufman had performed no gastric bypass ("GBP") surgeries within the 12 months before July 1, 2004 and Dr. Crookes had performed only 18 but none laparoscopically. A GBP is a type of bariatric surgery. Plaintiffs attempted to have these documents introduced into evidence but the doctors objected claiming the documents lacked authentication despite the fact the applications were produced by them through their own attorney. The court accepted this argument and refused to allow the documents into evidence despite plaintiffs' argument that the documents were self-authenticating since they were produced by the defendants, themselves. The information contained in the applications was completely contrary to the defendants claims of competence and experience in performing bariatric surgery that was presented to the jury. An appeal was waived for a waiver of costs. INSURANCE INFORMATION: Insurance Carrier: Hudson Insurance: $1 million (policy limits) per claim for Dr. Crookes; $1 million (policy limits) per claim for Dr. Kaufman.

Poll

11-1 (no negligence as to Dr. Crookes) and 12-0 (no negligence as to Dr. Kaufman), 12-0 (no lack of informed consent as to Dr. Kaufman), 12-0 (no fraud by negligent misrepresentation as to Dr. Crookes and Dr. Kaufman), 12-0 (no fraud by intentional misrepresentation as to Dr. Crookes and Dr. Kaufman)

Length

eight days