Veith v. O'Brien

• Decision Date: 15 August 2007
• Docket Number: No. 24025.,No. 24012.,24012.,24025.
• Citation: 2007 SD 88,739 N.W.2d 15
• Parties: Darrel R. VEITH, Plaintiff and Appellant, v. Peter O'BRIEN, M.D. and Sioux Valley Clinic Corporation d/b/a Surgical Associates, Defendants and Appellees.
• Court: South Dakota Supreme Court

739 N.W.2d 15

2007 SD 88

Darrel R. VEITH, Plaintiff and Appellant, v. Peter O'BRIEN, M.D. and Sioux Valley Clinic Corporation d/b/a Surgical Associates, Defendants and Appellees.

No. 24012.

No. 24025.

Supreme Court of South Dakota.

Argued March 20, 2007.

Decided August 15, 2007.

Ronald A. Parsons, Jr., Steven M. Johnson, Kimberly J. Lanham of Johnson, Heiderpriem, Janklow, Abdallah & Johnson, LLC, Sioux Falls, South Dakota, Attorneys for plaintiff and appellant.

Edwin E. Evans, Melissa C. Hinton of Davenport, Evans, Hurwitz & Smith, LLP, Sioux Falls, South Dakota, Attorneys for defendants and appellees.

GILBERTSON, Chief Justice.

[¶ 1.] On December 31, 2003, Darrel Veith (Veith) filed a complaint against Peter O'Brien, M.D. (Dr. O'Brien) and Sioux Valley Clinic Corporation d/b/a Surgical Associates (Sioux Valley Clinic) with the South Dakota Second Judicial Circuit. Veith's complaint alleged claims of medical negligence and respondeat superior. On September 28, 2004, Veith amended his complaint, adding a claim for failure to obtain informed consent. A jury trial was held from November 29, 2005 through December 6, 2005. The jury delivered a verdict in favor of Dr. O'Brien and Sioux Valley Clinic that was entered on December 8, 2005. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Forty-nine-year old Veith struggled with obesity most of his adult life. By 2000, his weight was approaching 350 pounds and was causing him serious medical problems. In addition to limited mobility, Veith had a serious diabetic condition and arthritic knees. After numerous conventional weight loss attempts without success, Veith's family physician, Dr. Michael Farritor, recommended gastric bypass surgery.

[¶ 3.] Veith researched the many available types of gastric bypass surgery. He eventually decided upon a procedure called Roux-en-Y.¹ Veith initially consulted with Dr. Fred Harris. Dr. Harris, a bariatric surgeon, regularly performed the Roux-en-Y procedure. During the consultation, Dr. Harris gave Veith a booklet published by the American Society for Bariatric Surgery (ASBS) entitled, "Surgery for Morbid Obesity: What Patients Should Know." The booklet explained the various types of gastric bypass procedures, including the Roux-en-Y, as well as the potential complications involved with gastric bypass. Dr. Harris discussed the surgery and potential complications with Veith, but was unable to perform the surgery because his schedule was full for the foreseeable future. Consequently, Dr. Harris referred Veith to Sioux Valley Clinic.

[¶ 4.] Veith scheduled an appointment with Dr. Donald Graham (Dr. Graham) at Sioux Valley Clinic. However, on July 25, 2001 when he went to Sioux Valley Clinic for the appointment, Veith instead met with Dr. O'Brien. Again the various risks and complications of gastric bypass were discussed with Veith. Dr. O'Brien also discussed the general ways in which gastric bypass can be accomplished, through a full-open procedure or laparoscopic surgery. Dr. O'Brien explained that the less invasive laparoscopic surgery, in comparison to a full-open procedure that lays open the entire abdomen exposing the bowel, is conducted by making several small incisions in the abdomen through which the surgeon inserts instruments. Through one of the incisions the surgeon inserts a laparoscope, a tube with a light and a camera that enables the surgeon to conduct the procedure by viewing a video monitor.

[¶ 5.] The gastric bypass procedure performed by Dr. O'Brien is referred to as the "loop gastric bypass," otherwise referred to as the "mini gastric bypass" or "mini-loop gastric bypass."² Veith was again provided a copy of the same ASBS booklet he had received during the consultation with Dr. Harris. The ASBS booklet did not describe the loop gastric bypass. Although disputed by Veith, evidence was introduced at trial that Veith also received a second booklet, describing the loop gastric bypass, entitled, "Laparoscopic Gastric Bypass Performed by Dr. Peter J. O'Brien."³ Dr. O'Brien testified that following his explanation of the loop gastric bypass, he recommended to Veith that he loose 20 pounds so as to ensure that the loop gastric bypass could be performed laparoscopically as opposed to a fully invasive open procedure. Following the initial consultation, Dr. O'Brien sent Veith a letter confirming that he was scheduled for laparoscopic loop gastric bypass surgery. Veith acknowledged at trial receiving and reading the letter.

[¶ 6.] The day prior to the surgery, Veith again met with Dr. O'Brien. During the pre-operative appointment, Dr. O'Brien again discussed the upcoming surgery and the potential complications. While there, Veith signed a consent form indicating that he understood the nature and purpose of the operation, possible alternative methods of treatment, the potential benefits and risks, and the likelihood of success and post-operative complications. Veith was aware that among the various complications that could arise from gastric bypass surgery, one could experience a leak anywhere in the bowel where there had been a division or where two parts had been joined together. He was aware that such a leak could cause abscesses or even peritonitis that could lead to death. Veith was also aware that among the potential complications he also risked hematoma or intra-abdominal bleeding, bowel obstructions, pneumonia and ulcers. Moreover, he was aware that potential revision surgery might be necessary.

[¶ 7.] On November 13, 2001, Dr. O'Brien performed loop gastric bypass surgery on Veith. Despite the fact that Veith had not lost 20 pounds prior to surgery, Dr. O'Brien went ahead with the laparoscopic procedure because Veith was tall and, at 328 pounds, still within the 350 pound limit to which he restricted the performance of laparoscopic surgery. Dr. O'Brien anticipated that Veith would be hospitalized for about two days following surgery. However, Veith developed post-surgical complications and remained at Sioux Valley Hospital for nine days.

[¶ 8.] While hospitalized, Veith developed a large abdominal hematoma and experienced severe pain. Veith also developed pneumonia, a fever and an elevated white blood count. Concerned that the hematoma might be infected Dr. O'Brien ordered a CT scan.⁴ He subsequently ordered a regime of antibiotic treatment which resolved these issues. Veith was soon able to take in a full liquid diet and was discharged on November 22, 2001.⁵

[¶ 9.] Within a few weeks, Veith's condition worsened. On December 19, 2001, he was readmitted to Sioux Valley Hospital after he was diagnosed with an intraabdominal abscess, resulting from a leak that had developed in the reconstructed digestive track sometime following surgery.⁶ Dr. O'Brien inserted a drain in Veith's side and established nutritional support through an IV tube. Dr. O'Brien also prescribed antibiotics to fight the infection. At Veith's request, Dr. O'Brien transferred him to the Mayo Clinic. Veith received the same type of treatment at Mayo. After staying there approximately two weeks, he was discharged. Veith ultimately recovered from the leak and resultant abscess.

[¶ 10.] During the next eighteen months, Veith developed an ulcer which eventually healed with medication. However, he also had difficulty maintaining his weight which eventually dropped to about 150 pounds. On June 10, 2003, Veith consulted with Dr. O'Brien's partner Dr. Graham. On October 1, 2003, Dr. Graham performed revision surgery and reconfigured Veith's bowel from the loop gastric bypass, performed by Dr. O'Brien, to the Roux-en-Y configuration. During the surgery Dr. Graham discovered and repaired a twist that had developed in Veith's bowel, which was causing a partial blockage that accounted for his inability to maintain weight.⁷

[¶ 11.] On December 31, 2003, Veith filed his complaint against Dr. O'Brien and Sioux Valley Clinic alleging medical negligence and respondeat superior. Veith amended his complaint on September 28, 2004, to include a claim for failure to obtain informed consent. A jury trial commenced on November 28, 2005.

[¶ 12.] Prior to trial, Veith was granted a motion in limine to exclude certain evidence related to Dr. O'Brien's track record with the loop gastric bypass procedure. The subsequent order permitted Dr O'Brien to testify as to the probability of success using the loop gastric bypass, based on his expert knowledge and to testify as to his personal knowledge of the number of patients upon whom he operated that developed complications. However, he was not permitted to testify or introduce evidence "as to any error rate or leak rate in terms of percentages, decimals, etc."

[¶ 13.] During Veith's case-in-chief, and over defense counsel's objection noting the trial court's prior order, plaintiff's counsel cross-examined Dr. O'Brien about the national complication rate for gastric bypass surgery rate in terms of percentages. On redirect and over Veith's objection, the trial court allowed Dr. O'Brien to give testimony as to the percentage of operations that he had performed from which various types of complications had arisen as compared to the national percentage rates for the same complications. Dr. O'Brien's testimony indicated that his surgical complication rate compared favorably with the national rate.

[¶ 14.] Veith called bariatric surgeon James M. Balliro, M.D. (Dr. Balliro) to give expert testimony. Dr. Balliro testified that the loop gastric bypass that Dr. O'Brien performed on Veith had two major problems that he claimed made the procedure unacceptable. First, the manner and location in which the newly created small pouch was attached to the small intestine caused acid, bile and pancreatic digestive enzymes to reflux back into the stomach when eating, causing pain, bleeding, irritation and ulcers. Second, if a leak developed in the stomach due to the problems caused by the constant refluxing, the material in the stomach that...