Bereal v. Bajaj

• Decision Date: 01 April 2016
• Docket Number: No. 111,954.,111,954.
• Citation: 52 Kan.App.2d 574,371 P.3d 349
• Parties: Edward M. BEREAL, Appellant, v. Ravi K. BAJAJ, M.D., and Wesley Medical Center, L.L.C., Appellees.
• Court: Kansas Court of Appeals

52 Kan.App.2d 574

371 P.3d 349

Edward M. BEREAL, Appellant,

v.Ravi K. BAJAJ, M.D., and Wesley Medical Center, L.L.C., Appellees.

No. 111,954.

Court of Appeals of Kansas.

April 1, 2016.

Jonathan Sternberg, of Jonathan Sternberg, Attorney, P.C., of Kansas City, Missouri, and Thomas M. Warner and Anne H. Pankratz, of Warner Law Offices, P.A., of Wichita, for appellant.

David S. Wooding and Marcia A. Wood, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, for appellee Ravi K. Bajaj, M.D.

John H. Gibson and G. Andrew Marino, of Gilliland & Hayes, LLC, of Wichita, for appellee Wesley Medical Center, L.L.C.

Before ARNOLD–BURGER, P.J., GREEN and STANDRIDGE, JJ.

GREEN, J.

This medical malpractice action arose after Edward Bereal went in for a heart catheterization during which air was improperly injected into his heart, causing an embolism and stroke. This resulted in Bereal being permanently paralyzed. The defendants, Dr. Ravi K. Bajaj and Wesley Medical Center, L.L.C., do not dispute that air was improperly injected into Bereal's heart, injuring him. Instead, the defendants maintain that his injuries occurred as a result of a defect in the medical device used for the heart procedure and, thus, the manufacturer of the medical device was responsible for Bereal's injuries. The manufacturer of the medical device was originally a party in this case. But after a settlement agreement was reached between Bereal and the manufacturer, Bereal dismissed the manufacturer as a party from the case.

Following a 21–day jury trial, the jury found in favor of the defendants. On appeal, Bereal asks this court to review the trial court's order striking the testimony of Bereal's rebuttal expert witness, Dr. Suzanne Parisian, M.D. In addition, Bereal contends that the trial court erred in allowing one of the defendants' experts to testify to conclusions that were outside the scope of the disclosed expert's pretrial report. Moreover, Bereal asserts that the defendants' expert's testimony was speculative and should have been stricken. Finally, Bereal contends that the trial court erred when it failed to grant him a judgment as a matter of law on all six of the defendants' affirmative defenses.

Of these three issues, we hold in Bereal's favor on the first issue. We conclude that the trial court abused its discretion when it excluded Dr. Parisian's rebuttal testimony because her testimony was intended solely to contradict or rebut the defense expert's causation theory and therefore constituted proper rebuttal testimony. We therefore affirm in part, reverse in part, and remand for a new trial.

In 2009, after complaining of chest pains, Bereal was referred to Dr. Ravi Bajaj, a cardiologist at Wesley Medical Center, L.L.C. (Wesley). Dr. Bajaj scheduled Bereal for a cardiac catheterization, commonly known as a heart catheter, on December 11, 2009.

On December 11, 2009, Bereal came to Wesley for his heart catheter procedure. Dr. Bajaj was the physician, Travis January was the monitoring nurse, Stacy Cody was the scrub tech, and Michael Stilwell was the circulating nurse.

Three weeks before Bereal's procedure, Wesley's Medrad Avanta (Avanta) fluid injection system that was used during Bereal's procedure, received a software upgrade which allowed the user to hit one button to purge both the saline and contrast lines simultaneously. These types of upgrades were common and occurred regularly.

Normally, this is a routine outpatient procedure which Dr. Bajaj had performed roughly 15,000 times. Nevertheless, it is undisputed that during Bereal's procedure, air was injected into his heart, causing an embolism and stroke, which resulted in his lengthy inpatient care and permanent paralysis.

Mechanics of a Cardiac Catheterization Using the Avanta System

All of the parties agree that the following is a fair and accurate statement describing the mechanics of a cardiac catheterization procedure using the Avanta system that was used in this case:

“In a cardiac catheterization, long, thin tubes called ‘catheters' are placed in the patient's heart, and radiopaque contrast dye is injected into the patient's heart, the flow of which can be seen on an x-ray fluoroscope. The procedure takes measurements of circulation pressures, blood flow, and oxygenation, and provides visualizations called ‘angiograms ’ so as to recommend how to treat heart problems. As with Mr. Bereal, the ‘most common reason’ a heart cath is performed is to look for blockages in coronary arteries.

“Besides the physician, the procedure also involves a circulating nurse, a monitoring nurse, and a scrub tech. The monitoring nurse monitors the patient's vital signs and angiograms from an adjoining room, obtains information from the other team members, and also documents and keeps track of the procedure for records. The circulating nurse ensures the patient is comfortable and gives and documents any medication the physician orders, including the type, weight, and amount of contrast. The scrub tech prepares the patient, stays sterile, and assists the physician; only the physician and scrub tech are sterile.

“The physician begins by inserting a tiny ‘femoral catheter ’ in the patient's groin, through the femoral artery, and into the aorta in the heart, where it is under pressure. To inject the dye, the physician uses either a hand-injection procedure or a power injector such as the Avanta Fluid Injection System manufactured by Medrad, which was used in Mr. Bereal's procedure. The Avanta or another power injector ‘is a required piece of equipment in all cath labs.’ The angiograms are x-ray images of the procedure showing the dye going into the patient's heart and out into the vessels. Using the Avanta, the physician hits a foot pedal, contrast goes in, and an image is taken, with each process taking only four seconds.

“Besides contrast, saline also can be injected to flush the machine and ensure that catheters are clean. A pressure transducer is connected, measuring blood pressure in real time by translating fluid pressure into blood pressure as a ‘wave form,’ a ‘sine wave’ visible on the monitoring screen.

“Contrast and saline are separately stored in the Avanta's injector head, with a line primed from each storage and strung through the machine. Essentially, the Avanta has plastic catheter tubing attached to it, which in turn is attached to the femoral catheter already inserted inside the patient. Fluid under 400 PSI to 700 PSI of pressure in the Avanta then is injected into the patient's heart through catheters that are themselves at 1200 PSI.

“It is crucial that all the tubing—both the Avanta's catheters and transducer and the catheter in the patient—must be purged of air; there is ‘no margin of error’ for this. Otherwise, it is ‘extremely dangerous to the health and safety of a patient:’ due to ‘block[ing] the blood flow to the heart and to the brain,’ air injection can cause serious injury, including stroke, and even death.”

Dr. Bajaj and Cody were responsible for purging all of the air from the catheters and the Avanta system for Bereal's procedure. Both Dr. Bajaj and Cody testified that they properly purged the system of air and that no one noticed any defects or cracks in the catheters before the procedure began.

During the first injection, an unusual problem occurred which caused Bereal's heart rate to drop. After Dr. Bajaj stabilized Bereal, he unhooked Bereal from the Avanta system and switched to hand contrast injections to continue the procedure.

After the procedure, Bereal was transferred to intensive care where he suffered a stroke which paralyzed him. After receiving over 2 months of inpatient care and rehabilitation, Bereal was discharged with a final diagnosis of stroke caused by an air embolism from the heart catheter procedure.

At trial, all of the parties agreed that Bereal had suffered an “intravascular air embolism.” The parties presented conflicting expert testimony in an effort to explain how the air got into the Avanta system.

Bereal's Medical Experts

Bereal presented two medical experts who testified that air was in the tubing before the first injection occurred and that air did not enter the system through a defect or malfunction of the Avanta equipment.

Bereal's first expert, Karen Harris, a supervising cardiovascular technologist at Massachusetts General Hospital, testified that bubbles were visible on the angiograms which showed that air came out of the catheter first and entered the aorta and then the dye. Based on the angiogram image, Harris testified that this showed that there was no failure in the Avanta system because “the air that was injected was the first thing that came out of the catheter,” meaning the air “was much further into the patient than the [Avanta] system.... The air was the first thing to come out.” Harris also relied on the wave forms to support her testimony that air was in the femoral catheter before the first injection. Harris explained that the wave forms were “dampened,” which could be caused by air somewhere in the Avanta system. Harris explained that there were only six ways air could have entered Bereal's system and if any one of those occurred it would have been a departure from the standard of care.

Bereal's second expert, Dr. Michael Fifer, a cardiologist from Boston, Massachusetts, agreed with Harris' conclusion that air got into the Avanta system as a result of negligence by Wesley personnel. Dr. Fifer testified that in his opinion Dr. Bajaj failed to aspirate the catheter after making the wet-to-wet connection, failed to fill the catheter with X-ray dye before entering the coronary artery, failed to observe that the wave form was dampened before the first injection, and failed to recognize the possibility that there was air in the system, all of which were deviations from the standard of care.

Defense Medical Experts

Dr. Layne Reusser, an interventional cardiologist who practices in Wichita, Kansas, testified as a standard-of-care expert witness...