Facts

This case revolves around the performance of a June 19, 2020 type III paraoesophageal hiatal hernia repair performed by Dr. Oh at Marian Medical Center in Santa Maria, California.

Plaintiff Teresa Duran was 60 years old at the time of the surgery. She had been off of work secondary to a workers' compensation injury she had sustained while working as a store manager. Her husband, fellow plaintiff Robert Duran, was a 58 years old male.

In terms of the background/factual chronology involved in this case, plaintiff Teresa Duran had made initial complaints to her primary care provider, P.A. Scarlett Okerblom, of ongoing epigastric pain that had been occurring for approximately three years. Given this, she was referred to gastroenterologist Dr. Robert Evans of Santa Maria for further evaluation and workup in light of her complaints. Dr. Evans saw the patient on February 5 and after evaluation of the patient, had concern for the patient having either reflux esophagitis or gastritis. He performed an esophagogastroduodenoscopy (EGD) on this patient on February 17, 2020 and found a large hiatal hernia. Following completion of the EGD, a CT scan of the abdomen and pelvis was obtained that confirmed the presence of a hiatal hernia. Dr. Evans reported his findings of fact to P.A. Okerblom, who ultimately referred the patient to Dr. Daniel Oh for a surgical evaluation and consideration.

Dr. Oh had his first visit with the patient on March 16, 2020. At the time of that visit, the patient complained of 8 out of 10 epigastric pain that radiated to her upper back. The pain could last for days, and she was experiencing it up to three times a month, and had been for three years. At the time of this initial visit, Ms. Duran weighed approximately 160 pounds. After evaluating the patient, Dr. Oh also reviewed the patient's February 21, 2020 CT scan results that found a near complete gastric herniation into the posterior mediastinum. Ms. Duran reported a history of a number of prior surgeries, including a bladder surgery, left inguinal hernia surgery, and shoulder surgery prior to this visit. Dr. Oh's plan was to have the patient undergo a barium upper GI study so that more information could be learned about the nature of the hiatal hernia. There was no specific discussion of surgery on this visit, but the patient was asked to return to see him once she had undergone the upper GI barium study.

Ms. Duran returned to go see Dr. Oh for a second visit on May 8, 2020 at the Surgical Specialists office in Santa Maria. At the time of that visit, Ms. Duran reported increased symptoms to Dr. Oh, stating that her pain had gone from existing for three times a month to approximately three times a week and was interfering with her sleep and leaving her feeling bloated most of the time. Ms. Duran had also undergone the upper GI barium study on April 30, 2020 that confirmed the finding of a large hiatal hernia, which was a wholly expected finding. Dr. Oh informed Ms. Duran during this visit that her hiatal hernia was one of the largest that he had seen during the course of his career as a general surgeon, and the two discussed potential surgical intervention at that time. Ms. Duran could not recall details about the informed consent nature of that discussion, but did remember Dr. Oh indicating that hernias could recur. Dr. Oh documented that he warned the patient of the risks of surgery including bleeding, infection, dysphasia, and recurrence of the hernia. In addition, he testified that his custom and practice would be to inform the patient that given the large size of her hernia, she was at increased risk for complications in the future. Dr. Oh recommended surgery for the patient given the concern of the increasing severity of her symptoms as well as the potentially emergent condition that could result in surgical intervention were not obtained and her situation evolved into acute gastric volvulus. Dr. Oh did not order any preoperative manometry or esophageal motility studies before surgery, noting that the results would not be reliable given the inherently distorted anatomy present and a type 3 paraesophageal hiatal hernia, as well as the fact that the results of such studies would not change his surgery plan, which would be to reduce the hernia and perform a 270-degree Toupet fundoplication for Ms. Duran. The plaintiff testified that Dr. Oh drew her a diagram of the surgery and explained what he would do during the surgical procedure itself.

The patient ultimately presented for surgery with Dr. Oh on June 19, 2020 at Marian Medical Center in Santa Barbara. Dr. Oh was able to effectively reduce the hiatal hernia by way of a robotic laparoscopic approach, and he was able to complete a 270-degree Toupet fundoplication. At the time that he closed the patient up, he confirmed that he was happy with the repair and that Ms. Duran's stomach was not torqued or kinked in any fashion, her wrap was aligned correctly, and her wrap was not twisted in any way. Ms. Duran testified that on the morning of surgery she recalls meeting with Dr. Oh but does not recall discussing any risks of the surgical procedure. Ms. Duran also testified that she met with an anesthesiologist on the morning of surgery and was informed about the risks of undergoing general anesthetic when moving forward with the operative procedure in question. She confirmed that the anesthesiologist in the case warned her of risks of anesthesia, including such significant complications such as stroke or death.

The patient was hospitalized immediately following surgery from June 19 until June 23, as she had demonstrated some postoperative shortness of breath complaints along with moderate dysphagia, although the patient could tolerate liquids at time of discharge.

The patient's first postoperative visit occurred on July 1, 2020 at Dr. Oh's office. Ms. Duran reported encountering dysphagia with solid foods but was tolerating liquids well. She also was experiencing intermittent nausea and bloating. Dr. Oh prescribed Zofran for her nausea, and testified that her postoperative dysphagia was wholly expected following this type of surgical procedure. His plan was to continue the patient on a full liquid diet and have her add protein shakes 2 to 3 times a day and return to the clinic in two weeks.

Ms. Duran returned for her second post-op visit on July 15, 2020. At the time of that visit, the patient was still tolerating a full liquid diet but reported dysphagia even with liquids along with intermittent bloating and diarrhea. In addition, Ms. Duran reported approximately 15 pounds postoperative weight loss. The patient's weight loss was a slight concern to Dr. Oh at that point, and he instructed her to increase her caloric intake, and also told her that her dysphagia may take several weeks to improve.

The patient returned for her final visit with Dr. Oh on July 31, 2020 at the Surgical Specialists office in Santa Maria. At that time, Ms. Duran reported that she was experiencing cramping abdominal pain and diarrhea after eating creamy soups, and had some dysphagia present. She was able to drink two Ensure without difficulty and was feeling weak and had lost 18 pounds postoperatively. At that point, Dr. Oh began to suspect that perhaps the patient's complaints of cramping abdominal pain and diarrhea after eating creamy soups was potentially related to a suspected potential irritable bowel syndrome, and he referred the patient back to her gastroenterologist, Dr. Robert Evans, for further evaluation and determination of the presence of IBS, including recommending an EGD be done.

Dr. Oh did not have any further visits with Ms. Duran after July 31, as he had previously been scheduled to move out of state beginning on August 1.

The patient was seen for further follow up visits by one of Dr. Oh's partners, Dr. Thomas Bosshardt, on August 26, 2020 and early September 2020. At that time, Dr. Bosshardt referred the patient to UCLA because he felt she could benefit from a higher level of care.

At UCLA, it was ultimately determined that Ms. Duran had experienced a re-herniation of her hiatal hernia. The patient underwent surgery with Dr. David Chen in November of 2020 and a "redo fundoplication" was performed at that time. After surgery with Dr. Chen, the patient continued to experience significant postoperative dysphagia complaints, and ultimately in early 2021 underwent replacement of a PEG tube with Dr. Danny Issa at Los Robles Hospital and Medical Center in Thousand Oaks, California.

Ms. Duran continued to experience tremendous difficulties with swallowing food by mouth, and lost tremendous amounts of weight thereafter. She, at one point, had reached as low as 78 pounds from her preoperative weight of 160 pounds. She was around 130 pounds at the time of Dr. Chen's surgery in November of 2020.

At time of trial, Ms. Duran had most recently been seen by thoracic surgeon, Dr. Sean Wightman, at USC-Keck. Dr. Wightman had seen the patient on a number of occasions, and she had been the subject of a swallow conference at USC. Since the November 2020 surgery with Dr. Chen, Ms. Duran had undergone a number of attempted esophageal dilations, and while they appeared to be somewhat successful at expanding her distal esophagus, she never had much success in returning to intake of food by mouth.

Dr. Wightman ultimately testified at time of trial that he did not recommend any further surgical intervention for Ms. Duran and informed her as much, indicating that he felt the risks of surgery would outweigh her potential benefits. In addition, imaging studies at USC in the 2022/2023 time frame had revealed that the patient had again demonstrated a small re-herniation of her hiatal hernia. Both Dr. Wightman and Dr. Evans testified that they could not state with any reasonable degree of medical certainty what the cause of her ongoing dysphagia was.

Since her surgery with Dr. Chen in November of 2020, the patient had had somewhat contradictory diagnostic study results, including both normal esophageal manometry studies as well as abnormal esophageal manometry studies. Further, the patient had normal gastric emptying studies which would suggest against any ongoing gastroparesis, but she also had some delayed gastric emptying seen on EGDs that would indicate potential gastroparesis-like symptoms/vagus nerve dysfunction. Unfortunately, no one could specifically pinpoint the one unifying diagnosis that explained her ongoing issues.

The plaintiff's expert witness at time of trial was Dr. Daniel Marcus of Cedars-Sinai. Dr. Marcus, who was not a board-certified general surgeon, testified that Dr. Oh deviated from the standard of care in the preoperative, intraoperative and postoperative time frame. In addition, Dr. Marcus testified that Dr. Oh did not obtain a valid/reasonable informed consent from Ms. Duran, testifying that he needed to provide her with further information and risks about the ongoing surgical procedure. Despite not indicating that it was the standard of care, Dr. Marcus informed the jury that he felt further preoperative investigation and workup could have been done, including by way of esophageal manometry studies. Intraoperatively, Dr. Marcus criticized Dr. Oh for failing to excise and remove/send the pathology the hernia sac in this case. Postoperatively, he felt that the standard of care required Dr. Oh to have a higher suspicion of an ongoing abnormality in the immediate postoperative time frame and conduct further investigation so that, if it was deemed necessary, the patient could be taken back to surgery on a quicker basis.

The defense standard of care expert was Dr. Wilson Tsai of Walnut Creek. Dr. Tsai, who is a robotic thoracic specialist and a hiatal hernia specialist, testified that Dr. Oh met the standard of care at all times during the preoperative, intraoperative, and postoperative time frame. He confirmed that, based upon his review of materials, he felt that Dr. Oh had provided information about the most important and significant risks of undergoing a hiatal hernia repair of a giant paraesophageal hernia, which included ongoing dysphagia and recurrence. In addition, Dr. Tsai was highly complimentary of Dr. Oh's surgical technique, and confirmed that the hernia sac did not need to be excised and removed from the body during this type of procedure, but instead, needed to be dissected and reduced. He was cross-examined about "SAGES" guidelines regarding excision of the hernia sac, and he confirmed that the SAGES guidelines indicated that there was a strong recommendation for dissection and reduction of the hernia sac but only a weak recommendation, at best, for excision of the hernia sac. In addition, Dr. Tsai testified that removal of the hernia sac was not required by the standard of care, was not something he had done in his nearly 500 robotic type 3 paraesophageal hiatal hernia repairs in his career, and also risked injury to the vagus nerve, as the vagus nerve would transverse the hernia sac itself. Finally, Dr. Tsai testified that Dr. Oh met the standard of care in all of his postoperative visits with the patients, and that any criticism to the contrary was fundamentally the result of hindsight bias. Dr. Tsai indicated that patients can have variable healing times, and that Dr. Oh acted reasonably when he prescribed Zofran for the patient on July 1 and then referred her to Dr. Evans for further evaluation and workup on July 31. He also indicated that no further intervention was required by the standard of care during those postoperative time frames, including on the final visit. Dr. Tsai testified that the patient did not have severe dysphagia (defined as an inability to tolerate by mouth even one's own saliva) such that it might justify under the standard of care readmitting the patient to the hospital for a further surgical intervention and workup.

Ms. Duran herself testified and discussed in detail the difficulties that she has experienced since the June 19, 2020 surgery, as well as the problems that exist with her activities of daily living secondary to the PEG tube that she has implanted along with the embarrassment and other noneconomic damages/shame that occurs for her.

PLAINTIFF'S CONTENTIONS: Teresa Duran claimed negligence and lack of informed consent; Robert Duran claimed loss of consortium.

DEFENDANT'S CONTENTIONS: Defendant claimed that he met the standard of care and obtained informed consent for the June 19, 2020 surgery.

Insurer

The Doctors Company for defendants

Settlement Discussions

Plaintiffs made pre-trial CCP 998 demand for $199,999 for Teresa Duran and $74,999 for Robert Duran. These offers were not accepted, and no settlement offers were made on behalf of Dr. Oh and/or Surgical Specialists.

Specials in Evidence

Meds: $18,243

Damages

Non-economic only as the parties stipulated to $18,243 in economic expenses that would be recovered in the event of a plaintiff's verdict.

Injuries

Plaintiff claimed significant post operative dysphagia, weight loss, and placement of a PEG tube

Result

Defense verdict on negligence and informed consent.

Other Information

Four jurors stayed after trial to discuss the case with the attorneys: three that had voted for the defense and one that had voted for the plaintiff. The jurors who found for the defense indicated that they did not find Dr. Marcus overly persuasive, although all involved indicated a certain inherent level of sympathy for Ms. Duran's physical situation that she found herself in. The juror who voted for the plaintiff indicated that he and the other juror who found for the plaintiff felt that Dr. Oh could have done more in the postoperative time frame for Ms. Duran, and they felt that he did not give her postoperative condition the urgency in its evaluation and treatment that it required under the standard of care.

Deliberation

1 hour and 20 minutes

Poll

10-2 no negligence, 10-2 informed consent was obtained

Length

seven days