PITTSBURGH – A second physician who treated a Pittsburgh man during his gallbladder removal denies that he was liable for the severing of the patient’s bile duct and his continuous injuries.
Carmen Militello and Jane Militello first filed suit in the Allegheny County Court of Common Pleas on April 30 versus West Penn Hospital, West Penn Allegheny Health System, Inc. (doing business as “West Penn Hospital”), Allegheny Health Network, William H. Nelson, M.D. and Benjamin N. Cragun, M.D., all of Pittsburgh.
“On Aug. 26, 2019, Mr. Militello visited his primary care physician after experiencing episodes of epigastric pain at night. His physician referred him to the emergency room for tests and evaluation. Mr. Militello reported to the West Penn emergency room on Aug. 26, 2019 where he underwent a CT scan of the abdomen and pelvis that indicated acute cholecystitis,” the suit stated.
“He was admitted to West Penn that day and scheduled to undergo laparoscopic cholecystectomy (removal of his gallbladder), a minimally invasive procedure, on Aug. 27, 2019. The surgery was performed on Aug. 27, 2019 by Dr. Nelson and/or Dr. Cragun.”
The operative note, authored by Dr. Cragun, states there were no complications, and goes on to state, “There appeared to be two ductal structures entering the infundibulum of the gallbladder, in addition to the artery. All structures were then doubly clipped and divided close to the gallbladder.”
The next morning, Aug.28, 2019, Mr. Militello was informed that complications had indeed arisen during the previous day’s surgery in that his common bile duct had been severed during the procedure.
Labs showed that Mr. Militello had hyperbilirubinemia, increased liver enzymes and bilirubin levels which may be indicative of bile duct injury. He underwent a hepatobiliary scan later that morning that confirmed the severance of the common bile duct. The repair of a severed common bile duct is a complicated major surgery for which he was transferred via ambulance to Allegheny General Hospital on Aug. 28, 2019.
“Mr. Militello was admitted to the Allegheny General Hospital transplant surgery service for reconstruction. It was explained to Mr. Militello that he required a Roux-en Y hepaticojejunostomy for definitive repair to allow bile to drain from the liver to the small intestine and that the surgery would be more complicated than the laparoscopic procedure he had recently undergone,” the suit said.
“On Aug. 30, 2019, Mr. Militello underwent the Roux-en Y hepaticojejunostomy and remained hospitalized until discharge on Sept. 5, 2019. Mr. Militello has a diagonal 8-inch scar, residual edema at the incision site, and ongoing discomfort at the incision site.”
According to the litigation, the defendants’ surgical mistake required Mr. Militello to undergo an additional, more serious and complicated surgery than the minimally invasive laparoscopic cholecystectomy, required an additional seven-day hospitalization, a longer recovery period and several weeks of home health care for wound evaluation and dressing – which put him at very serious risk for decreased liver function in the future, including the potential need for a liver transplant, and also has placed him at risk for hernia repair surgery.
“The cause of most major bile duct injuries is misidentification of ductal structures. Often, the common bile duct is thought to be the cystic duct and is divided. In order to reduce the incidence of biliary injury, the standard of care when performing laparoscopic cholecystectomy requires that two and only two structures – the cystic duct and cystic artery – are identified as attached to the gallbladder before clipping and dividing,” per the suit.
“If three structures are visible, as the operative note indicates, the surgery should be paused long enough to properly identify the structures before clipping and dividing only the cystic duct and cystic artery so as not to sever the common bile duct.”
In defense of their client Nelson, the doctor’s attorneys filed an answer to the complaint and new matter on July 9. While the answer denied the allegations of the complaint in their entirety, the new matter provided affirmative defenses.
“While denying all negligence and all liability, the defendant avers that if he is found to have been negligent in any respect, any liability resulting therefrom would be diminished or barred by operation of the Pennsylvania Comparative Negligence Statute. Plaintiffs’ amended complaint fails to state any cause of action against the defendants. Defendant pleads the doctrines of intervening and superseding causes as affirmative defenses. Defendant has no ability or duty to anticipate improper or illegal acts of others,” the answer stated, in part.
Nelson’s counsel further argued that the plaintiffs are barred from recovering any amounts that have been and/or will be covered by insurance required by and/or available pursuant to the Affordable Care Act – and that any damages to which plaintiffs would otherwise be entitled shall be reduced by any amount which plaintiffs have received, or with reasonable certainty will receive, from insurance required by the Affordable Care Act.
UPDATE
An amended complaint was filed on Aug. 2, leading Nelson to file an answer to the second iteration of the suit on Aug. 13.
Furthermore, counsel for Cragun filed an answer to the suit on Aug. 17, pleading comparative negligence on the part of the plaintiff.
“The defendant pleads the applicability of the Pennsylvania Comparative Negligence Statute as an affirmative defense. While denying all negligence and all liability, the defendant avers that if he is found to have been negligent in any respect, any liability resulting therefrom would be diminished or barred by operation of the Pennsylvania Comparative Negligence Statute. Plaintiffs’ amended complaint fails to state any cause of action against the defendants. Defendant pleads the doctrines of intervening and superseding causes as affirmative defenses. Defendant has no ability or duty to anticipate improper or illegal acts of others,” Cragun’s answer said.
“Failure to mitigate damages is pleaded as an affirmative defense. Plaintiff is barred from the recovery of any damages that could be mitigated through the acquisition of insurance coverage required by and/or available in accordance with the Affordable Care Act. Any future medical damages, otherwise recoverable, shall be limited to the charges actually paid by or expected to be paid by an insurer or third-party payor. Plaintiff is not entitled to recover any amounts for future medical benefits in excess of premiums to maintain coverage available pursuant to the Affordable Care Act, including any future premiums, any out-of-pocket expenses, including any co-pays or deductibles, and amounts not otherwise covered by insurance.”
For multiple counts of professional negligence, corporate negligence and loss of consortium, the plaintiff is seeking damages in excess of the prevailing arbitration limits of this Court, exclusive of pre- and post-judgment interest, and costs.
The plaintiffs are represented by Patrick K. Cavanaugh, Stephen J. Del Sole and Zachary N. Gordon of Del Sole Cavanaugh Stroyd, in Pittsburgh.
The defendants are represented by David R. Johnson and Daniel J. Margonari of Burns White, also in Pittsburgh.
Allegheny County Court of Common Pleas case GD-21-004641
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com