Parsons v. Ameri
| Decision Date | 26 February 2020 |
| Docket Number | No. 18-P-1373,18-P-1373 |
| Citation | 97 Mass.App.Ct. 96,142 N.E.3d 628 |
| Parties | John E. PARSONS, Third, personal representative, v. Darius AMERI & others. |
| Court | Appeals Court of Massachusetts |
Tory A. Weigand, Boston (David M. Gould, Boston, also present) for the defendants.
Adam R. Satin, Boston (Julie A. Gielowski also present) for the plaintiff.
Present: Massing, Sacks, & Hand, JJ.
The plaintiff brought this medical malpractice wrongful death action on behalf of the estate of his late wife, Laura Parsons (Parsons), against a physician, a nurse, and the professional corporation that employed them. A jury determined that the physician's negligence in performing a surgical procedure resulted in Parsons's death and that the nurse's negligence contributed to Parsons's pain and suffering. The primary issue in this appeal is whether the evidence supported the jury's finding that the physician's actions amounted to gross negligence, for which the jury awarded punitive damages of $2.5 million. We affirm.
Background.3 1. The surgery. Parsons was referred to defendant Dr. Darius Ameri for treatment of a hiatal hernia
in her diaphragm. The diaphragm separates the chest cavity from the abdomen; the hiatus is an opening in the diaphragm that permits the esophagus to travel down through the chest into the stomach. A hiatal hernia is an abnormality in which the stomach protrudes up through the hiatus into the chest. Ameri determined that hiatal hernia repair surgery was necessary to restore Parsons's stomach to its proper anatomical position. He informed Parsons that she needed to lose weight prior to the surgery. A few months later, Parsons was admitted to Winchester Hospital for laparoscopic surgery.4
Ameri performed the surgery, assisted by defendant registered nurse first assistant Louise Pothier. Ameri chose to repair the hiatal hernia
by attaching a mesh closure to Parsons's diaphragm with a medical device called the Ethicon Securestrap, which is used during hernia repair surgery to attach prosthetic materials to soft tissue. Commonly referred to as a "tacker," the device attaches absorbable "tacks" (also called "straps" or "fasteners") through mesh into tissue.5 On their own, the tacks are approximately five millimeters in length, but at the time of insertion, the tacker presses them as much as 6.7 millimeters into the tissue.
The manufacturer's instructions for the tacker included several cautions. A minimum tissue thickness was required, and use of the device was contraindicated if the total distance from the surface of the tissue to any underlying bone, vessel, or organ was less than 6.7 millimeters. Moreover, it should not be used to insert tacks "in the diaphragm in the vicinity of the pericardium, aorta, or inferior vena cava during diaphragmatic hernia repair
." The pericardium is a membrane containing fluid surrounding the heart; the inferior vena cava and the aorta are the major blood vessels that carry blood to and from the heart.6
Ameri testified that he had used the tacker in many hernia
repair surgeries. He preferred to fasten mesh with the tacker because the tacks were less likely than sutures to tear, which could potentially raise the risk of hernia recurrence. Ameri used the tacker to affix mesh to Parsons's diaphragm crura, that is, the muscular edge of the diaphragm closest to the esophagus. Although he understood the contraindications associated with the tacker, Ameri stated that the tacker was nonetheless "almost always" used to fix the mesh to the edge of the diaphragm because the crura is so thick that the tacks were "not going to get anywhere beyond this thickness." Used in this way, the tacker was "nowhere close to," "does not have any relationship whatsoever, or a proximity or getting close," and was "far away from any major vessel or heart or any part of the pericardium." He admitted that he did not measure the thickness of Parsons's diaphragm crura at the time of the surgery, but he "ballpark[ed]" its thickness to be ten millimeters, thick enough to withstand the five millimeter tacks without allowing them to pierce through the diaphragm. He agreed that puncturing the pericardium or the myocardium, the heart muscle itself, during hiatal hernia
repair surgery would be below the standard of care expected of the average qualified general surgeon.
2. Postoperative complications and cause of death. After the surgery, Parsons's vital signs were stable. Two days after the surgery, however, she complained that her heart was racing and that she had abdominal pain. An echocardiogram
showed the presence of excess fluid in Parsons's pericardium near where the tacks were placed; her heart rate was very elevated and irregular. She was administered blood-thinning medication and morphine
. Approximately one hour later, Parsons went into cardiac arrest. She made "raspy, guttural sounds," her breathing became labored, and she was unresponsive except for moaning. Cardiopulmonary resuscitation (CPR) was performed, but efforts to resuscitate her were unsuccessful.
The provisional autopsy report stated that Parsons's cause of death was "cardiac in nature," caused by blood in the pericardial sac resulting in tamponade -- or compression of the heart due to excess fluid in the pericardium -- likely occurring from prolonged CPR. The medical examiner produced the provisional autopsy report based on external and internal examinations of Parsons's body.
The final autopsy report, produced after microscopic evaluation of Parsons's heart, noted "puncture marks on the posterior aspect of the heart with hemorrhage just below the level of the cardiac valves
," and the presence of 250 cubic centimeters (about eight ounces) of blood in the pericardium.7 The report noted both "acute and chronic" pericarditis, or inflammation of the pericardium, with "the acute inflammation and hemorrhage likely occurring at the time of hiatal hernia repair." "Although trauma was considered as a potential cause of the pericarditis, unequivocal evidence of surgical trauma ... could not be demonstrated." Parsons did not have a pulmonary embolism, or blood clot, in her lungs, the presence of which could have contributed to irregular heartbeat. The report concluded, "The final cause of death is ascribed to a combination of pericarditis
, myocarditis and hemopericardium" -- that is, inflammation of the pericardium, inflammation of the heart muscle, and bleeding within the pericardial sac -- "with tamponade leading to cardiac arrest."
3. Plaintiff's expert testimony. At trial, the plaintiff presented the expert testimony of Dr. Brian Carmine, a general surgeon who had performed nearly 1,000 hiatal hernia
surgeries. Carmine testified to a reasonable degree of medical certainty that Ameri and Pothier's treatment of Parsons was below the standard of care expected from the average qualified surgeon and registered nurse first assistant and was a substantial contributing factor to Parsons's death. Specifically, based on his review of the final autopsy report and the photographs from the surgery, Carmine opined that it was more likely than not that Ameri pierced Parson's pericardium and punctured her heart with the tacker, resulting in her cardiac arrest and death.
Carmine was familiar with the tacker Ameri used in the laparoscopic procedure
performed on Parsons as well as other techniques for hiatal hernia repair. Injury to the pericardium or any part of the heart muscle should not have occurred if proper surgical techniques were used, and causing such injury during hiatal hernia surgery would violate the applicable standard of care. The average qualified surgeon would have been aware of the risks of using a tacker: "the concern is that when you fire one of these pressure-loaded fasteners, that it can penetrate through and hit structures on the other side of the diaphragm that you can't see, and cause life-threatening injury." Once the stomach was moved down into its correct anatomical position and the hernia was closed or reduced, the back of the heart was just "the thickness of a diaphragm away" from where the tacks were placed; this distance could be as little as three to five millimeters. When asked whether Ameri used the tacker to place tacks on Parsons's diaphragm "in the vicinity of the pericardium," Carmine answered, that is, too close to the front of the chest, near the back of the heart. In Carmine's opinion, Ameri's choice to use the tacker directly on the diaphragm, when it was very close to the pericardium, was below the standard of care.
Carmine further testified that it was the surgical tacks that caused the puncture marks on Parson's heart, not CPR as the defendants contended. The puncture marks in the autopsy reports were not consistent with an injury related to CPR but, rather, were consistent with an injury occurring during the surgery. Carmine also noted that Parsons went into cardiac arrest
before CPR was performed.
4. Defense's expert testimony. The defendants' theory of the case was that Parsons died of longstanding damage to her heart caused by the hiatal hernia
, aggravated by prolonged CPR. Ameri emphatically denied "enter[ing]" Parsons's heart with the tacks during the performance of the surgery. The defense's expert witness, Dr. David Brooks, a general and gastrointestinal surgeon, opined that Ameri's actions and conduct were appropriate and in accord with the accepted practice of the average qualified...
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