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Kasper v. Damian

January 28, 2010


The opinion of the court was delivered by: Charles J. Siragusa United States District Judge



This is a diversity action alleging medical malpractice in connection with injuries sustained during a laparoscopic gallbladder surgery. Now before the Court is Plaintiffs' motion (Docket No. [#25]) for partial summary judgment as to liability. For the reasons that follow, the application is denied.


Unless otherwise noted, the following are the facts of this case, viewed in the light most favorable to Defendants. On May 6, 2005, Plaintiff Diane Kasper ("Mrs. Kasper") underwent a laparoscopic cholecystectomy to remove her gallbladder. The surgery was performed by defendant Richard Damian, M.D. ("Damian"). The surgery, when properly performed, requires the surgeon to transect the cystic duct and cystic artery, and to remove the gallbladder. However, as will be discussed further below, the surgeon must also avoid cutting the nearby hepatic ducts and the common bile duct, and in that regard Damian failed. The issue before the Court is whether such failure was malpractice as a matter of law, or whether there are triable issues of fact for a jury to decide.

During the subject surgery, Damian observed that Mrs. Kasper's bile ducts were inflamed. (Plaintiff's Statement of Facts ¶ 23). Damian also observed "a lot of thickening of the fat that's normally in th[e] location" of the gallbladder, such that "what [one] would deem as normal anatomy, wasn't immediately apparent." (Damian Deposition at 43). Damian attempted to locate the relevant sections of Mrs. Kasper's anatomy, consisting of "the gallbladder/cystic duct junction," the Calot lymph node, and the cystic artery, but the process was made difficult by the thickened tissue. (Id. at 44; see also, id. at 52:"[T]he gallbladder looked somewhat inflamed, the tissues were thickened near the bottom portion of the gallbladder making, you know, dissection difficult."). Damian was aware that, when a surgeon cannot adequately identify a patient's anatomy, it may be appropriate to convert the laparoscopic surgery to an "open" (laparotic) surgery, or to use intraoperative cholangiography (an x-ray examination of the biliary system), to help visualize the anatomy. (Id. at 52-58). Damian opted instead to conduct further dissection to identify the structures. (Id. at 57: "[S]ometimes, when the anatomy is not clear, it just takes more dissection to clarify the anatomy."). Damian began "stripping the tissues, sort of layer by layer to try to look for" the relevant structures, until he felt satisfied that he had identified the cystic duct and cystic artery:

[W]e had a lot of difficulty in opening up this which should be a relatively thin flimsy tissue, it was very thick and we stopped multiple times to sort of keep looking at the anatomy until we were happy to a point where we had identified, at least to our degree of satisfaction, what we thought was the cystic duct and where it met the common bile duct and the artery.

(Id. at 44). Damian placed surgical clips on what he believed were the cystic duct and cystic artery, cut those structures, and then removed the gallbladder from the liver using an "electrocautery device." (Id.). Damian's surgical notes state, in relevant part:

[W]e proceeded to identify the gallbladder. We clamped it in the fundus and retracted up. Using blunt dissection the Calot triangle was identified and dissected. All the components of the triangle were identified. This including the common bile duct, the cystic duct, and the cystic artery. After proper identification of the cystic artery this was clamped with large clips proximally and distally and transected. The Calot triangle was identified and dissected properly. It was noted that the tissues were inflamed, friable, and with minimal hemorrhagic bloody oozing. The cystic duct was clearly identified and dissected. It appeared to be dilated. We proceeded to clip it proximally twice and distally once and then transect it. Then the cystic artery also previously identified was clipped and transected. At all times the common bile duct was identified and kept out of the surgical field. After this we proceeded to perform antegrade cholecystectomy dissecting the gallbladder from the liver bed using laparoscopic hook electrocautery. (Pl. Motion for Partial Summary Judgment, Exhibit T).

Approximately two days later, on May 9, 2005, Mrs. Kasper experienced an abnormal amount of pain and other symptoms, including bile leakage, whereupon further surgery established that her hepatic ducts were cut, and that a section of her common bile duct was missing altogether. (Plaintiff's Stmt. of Facts, ¶ ¶ 33-35). Specifically, Thomas Vandermeer, M.D. ("Vandermeer") performed surgery to repair damage to Mrs. Kasper's common bile duct, during which he observed that a section of Mrs. Kasper's common bile duct was missing, and that four hepatic ducts were cut. (Vandermeer Dep. at 15, 20-22). As for the hepatic ducts, Vandermeer stated that they appeared to have been cauterized during the process of removing the gallbladder from the liver. (Id. at 22-23). Vandermeer characterized the unintended removal of the common bile duct as a "classic injury" resulting from a mistake, or "pattern recognition problem," during a cholecystectomy:

[T]he most frequent serious injury [is] caused in this way where the . . . [cystic] duct that drains the gallbladder is mistaken for the main bile duct and that gets divided and then the surgeon thinks that the bile duct is the site of the gallbladder and then ends up removing the whole bile duct. (Id.; see also, id. at 40). Vandermeer maintains that such injury had to have occurred during Damian's surgery: "I think if you have a gallbladder operation and three days later your bile duct is missing, unless you're abducted by martians or something bizarre happened, you know, I mean, it just sort of stands to reason that probably happened." (Id. at 17).

On March 16, 2007, Plaintiffs commenced the subject action, alleging medical malpractice under the law of the State of Pennsylvania. On June 18, 2009, following a period of pretrial discovery, Plaintiffs filed the subject motion for partial summary judgment as to liability. Plaintiff's contend that Damian caused Mrs. Kasper's injuries by breaching the relevant standard of care. In that regard, Plaintiff's maintain that upon encountering difficulty in identifying Mrs. Kasper's anatomy, Damian should have employed "standard safety devices," such an "intraoperative cholangiogram . . . or conversion to an open procedure," or else should have consulted "a specialist or other certified physician to help [him] identify and visualize [Mrs. Kasper's] relevant anatomy." (Pl. Stmt. of Facts, ¶ 24).

In support of their application, Plaintiffs cite, inter alia, the opinions of their expert witness, I. Michael Leitman, M.D. ("Leitman"), who maintains that Damian breached the standard of care. Leitman's expert report states, in relevant part:

If Dr. Damian had performed proper dissection of the cystic duct and saw the junction with the common bile duct, and avoided the hilum of the liver in this dissection, this complex injury would not have occurred. If he were unable to do so, then the use of intra-operative cholangiography would have, more likely than not, prevent this injury to Diane Kasper. . . . It is well principled that prior to clipping any structures in performing a cholecystectomy, the surgeon must be certain that he or she has clearly visualized and identified the cystic duct that goes directly to the gallbladder as well as visualize to be sure that no clips are being placed on the common bile [duct]. . . . Prior to placement of clips and transection, the standard of care requires that the surgeon be sure that it is the cystic duct, and not the common duct, that is clipped and divided. (Pl. Motion for Partial Summary Judgment, Exhibit Q). At his deposition, Leitman testified that during a laparoscopic cholecystectomy, complications may include the misidentification of the common bile duct, but that such complication, " is very well known by surgeons, but surgeons are trained to avoid it. . . . [I]n most instances, an injury such as this . . . is avoidable if surgeons comply with the standard of care." (Leitman Dep. ...

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