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Mercker v. Abend3/28/2003
*PLEASE NOTE: THIS IS A SUBSTITUTE OPINION.
Dr. Melvin Abend performed laparoscopic surgery on Suzanne Estee Mercker to remove her gallbladder in treatment for gallstones. Because of persistent bile leakage thereafter, Mercker underwent multiple repair surgeries. She filed a medical malpractice suit against Abend and his professional corporation, Melvin N. Abend, M.D., P.C., alleging they were liable for permanent damage to her biliary system. A jury found in favor of the defendants. Mercker appeals, contending that the trial court erred in charging the jury. Because Mercker has demonstrated no reversible error, we affirm.
During a laparoscopic cholecystectomy on Mercker on August 4, 1998, Abend unintentionally perforated the cystic duct. Because bile began to leak from the hole, Abend realized what he had done. He testified that " he cystic duct was transected in the process of the gallbladder removal at the level that the hole was." He left a bile drainage tube in the area of the cystic duct. Abend testified that he did so " ot because of the perforation of the cystic duct per se," but "as part of the overall assessment," which included a coarse, thickened gallbladder, the difficulty of the dissection, and abdominal adhesions. Before discharging Mercker from the hospital on August 5, Abend assured her that the tube was there because there might be some leakage, but that it would heal within a few days.
But on August 11, Mercker reported to Abend that bile continued to leak. Tests performed the next day revealed blockage of the bile duct, but not the source of the leakage. On August 13, Abend performed open repair surgery and discovered that during the cholecystectomy, he had erroneously placed a clip on the common bile duct, cut the common hepatic duct, and cut an accessory duct. According to Abend, he corrected those errors during the repair surgery.
But Mercker continued to leak bile. Because of the unexplained leakage, on October 7, Abend referred Mercker to Dr. Charles Staley. In April 1999, Staley performed the same type of repair surgery on Mercker as had Abend. The leakage persisted, although at a reduced rate. After confirming in May that the leakage was stemming from a small branch of Mercker's right biliary system, Staley performed another surgery in July, which stopped the leakage, but removed half of Mercker's liver. According to Staley, the liver usually regenerates within six months to a year, but Mercker faces certain lifelong health risks and her liver function must be monitored at least annually for the rest of her life.
In her lawsuit, Mercker did not contend that the perforation of her cystic duct occurred as a result of negligence. Rather, she claimed that Abend could not adequately see what he was doing during the laparoscopic procedure and therefore was negligent in failing to convert to an open procedure and in failing to perform a cholangiogram, a procedure whereby dye is injected into the biliary system to assist a physician in identifying parts of the anatomy. She further alleged that not doing either led to him erroneously placing a clip on her common bile duct and cutting her common hepatic duct. Mercker also claimed that Abend was negligent in not referring her to another physician for the initial repair surgery.
At trial, Mercker presented medical expert testimony that if a surgeon, at any point while performing a laparoscopic cholecystectomy, is not completely sure of the patient's internal anatomy or encounters "any kind of leak, hole, injury to anything that [he is] not satisfied with, any bleeding that can't control," the standard of care requires the surgeon to convert the procedure to an open one,
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