Faherty v. Gracias

Citations: 874 A.2d 1239; 2005 Pa. Super. 174; 2005 Pa. Super. LEXIS 1233

Court: Superior Court of Pennsylvania; May 12, 2005; Pennsylvania; State Appellate Court

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In the case of Susan M. Faherty, Administratrix of the Estate of Michael R. Faherty, appellee, against Dr. Vicente Gracias and the trauma nurses of the Hospital of the University of Pennsylvania, the plaintiffs claimed medical malpractice related to the death of Michael Faherty, who suffered from a bacterial infection due to a retained laparotomy sponge following surgery. The jury found no negligence on the part of the medical staff. Faherty's injuries stemmed from a severe automobile accident on April 7, 1999, which resulted in critical conditions, including massive internal bleeding and multiple organ failure. He underwent an exploratory laparotomy, during which significant portions of his bowel were removed, and laparotomy pads were packed into his abdomen to control bleeding. The abdomen was not fully closed post-surgery to manage ongoing bleeding, and the number of sponges used was not counted at that time. Following the jury's decision, Faherty's wife appealed, raising twenty-two claims of error, all of which were found to lack merit, leading to an affirmation of the jury's ruling.

Mr. Faherty experienced severe internal bleeding and required a transfer from Brandywine to the Level I trauma center at the Hospital of the University of Pennsylvania (HUP) on April 8, 1999, after exhausting Brandywine's blood supply. Upon arrival at HUP, he remained unstable, necessitating immediate stabilization, the administration of blood and fluids, and surgical intervention to remove lap pads that had been left in his abdomen during previous treatments. A total of 14 or 15 lap sponges were reported to be packed inside him.

Over the next two days, Mr. Faherty's condition improved, allowing for a second surgery scheduled for April 10, 1999. The purpose of this surgery was debated during the trial; Dr. David Befeler characterized it as a completion of trauma surgery aimed at removing packing and facilitating nutrition via a gastrostomy tube. Conversely, Dr. Vicente Gracias disputed this, asserting that the surgery was primarily for damage control as Mr. Faherty was still critically ill, on a ventilator, and experiencing ongoing bleeding. Dr. Gracias emphasized the need to close Mr. Faherty's abdomen to prevent further complications, as he required paralyzing medication that posed risks and could lead to severe outcomes if the abdomen remained open.

Intraatomospheric fistula poses a critical risk for patients with abdominal surgeries, as prolonged exposure of internal organs can lead to perforations. Efforts to close the abdomen are primarily aimed at protecting the intestines and ceasing paralyzing medications, indicating a temporary stabilization rather than full recovery. On April 10, 1999, Dr. Gracias operated on Mr. Faherty, removing 14 retained lap sponges, which had been previously placed during an April 8 surgery. Following surgery, Mr. Faherty's condition initially improved but later deteriorated, leading to a CAT scan on April 16 that revealed a retained sponge and an associated infection. Dr. Kauder subsequently removed the sponge and drained purulent fluid, identifying bacteria, including Klebsiella and Bacteroides, indicating sepsis and septicemia. Within days, Mr. Faherty exhibited signs of pancreatitis and ongoing sepsis. On April 24, a G Tube malfunctioned, leaking significant fluid into his abdomen, prompting another surgery by Dr. Gracias to reattach the tube and address the spillage, highlighting Mr. Faherty's severe healing issues.

Mr. Faherty underwent a final surgery that did not halt his septic condition, leading to the family's decision to change his code status to DNR (do not resuscitate) on May 7, 1999, the same day he died from multiple organ failure and sepsis. His wife, Susan M. Faherty, filed a wrongful death lawsuit against the medical staff, alleging negligence. Only Dr. Gracias and the nurses from HUP were taken to trial, where they were found not negligent. Ms. Faherty has appealed, claiming the trial court erred in several ways, including refusing to grant a judgment notwithstanding the verdict (n.o.v.) on the nursing staff's negligence and denying motions for directed verdicts regarding both the nursing staff and Dr. Gracias. Additionally, she asserts that the court failed to instruct the jury on the doctrine of res ipsa loquitur and made various other erroneous rulings.

The appellate court criticized Ms. Faherty for not adhering to the mandatory requirements of the Rules of Appellate Procedure, particularly regarding the format and brevity of her 'Statement of Questions Involved,' which exceeded acceptable limits. The court noted that her broad references to evidentiary issues without specific claims of error hindered effective review and led to the waiver of many sub-issues. The court indicated that her arguments regarding directed verdicts were intertwined but clarified that the appellate standard of review does not permit granting relief based on her claims.

When reviewing an appeal for judgment n.o.v., the appellate court must interpret evidence favorably towards the verdict winner, granting all reasonable inferences while dismissing unfavorable testimony. A judgment n.o.v. is appropriate only in clear cases where the movant is entitled to judgment as a matter of law or when no reasonable minds could disagree on the outcome. The standard of review for directed verdicts mirrors this, allowing for overturning only if the trial court abused its discretion or made a legal error affecting the case's outcome. A directed verdict can only be granted when the facts are unequivocal.

In this case, the appellant claims that expert testimony established the nursing staff's negligence during surgeries on April 8 and April 10, 1999. Expert Dr. Jane Claire Rothrock, R.N., asserted that the nursing staff failed to adhere to the 'sponge count' procedures during the April 8 surgery. However, this assertion is disputable, as a jury could find that the nursing staff followed established protocols. Dr. Rothrock indicated that during surgical emergencies, priority is often given to the patient’s life over counting sponges, and that proper procedures are followed once the situation stabilizes. Furthermore, HUP had specific policies regarding sponge counts, which dictated that if the number of sponges used was uncertain, it should be noted as an incorrect count. During the April 8 surgery, the report indicated 14 sponges were left inside the patient, but also marked it as an 'incorrect' count, suggesting that the nurses adhered to the policies outlined by Dr. Rothrock.

Appellant contends that the nurses were negligent on April 10th by asserting that only 14 sponges were to be removed from Mr. Faherty's abdomen. However, appellees' expert, Dr. David Livingston, testified that the nurses met the standard of care, providing good care throughout Mr. Faherty's hospitalization. Appellant's argument relies on a misinterpretation of the purpose of the April 10 surgery, which was viewed by appellant's experts as the final closure of the abdominal wall, leading them to claim negligence for potential sponge retention. Dr. Gracias clarified that the April 10 procedure was not the definitive closure but aimed to improve Mr. Faherty's physiology and prevent complications. He indicated that sponge removal was not a high priority during this surgery, which was supported by Dr. Roger Nieman's testimony that the laparotomy sponge was sterile and its retention would not affect the treatment of Mr. Faherty’s infection. The jury was informed that the appellant's experts held the nurses and Dr. Gracias to an unreasonable standard of care, mischaracterizing the surgery as a definitive phase of damage control. Thus, under these circumstances, the jury could conclude that the nurses had no obligation to accurately count the sponges, as the surgery's purpose did not necessitate such precision.

Dr. Roger Nieman's expert testimony indicated that the April 10, 1999 surgery did not permanently close Mr. Faherty's abdomen, as his bowels would have required drainage regardless of the presence of a sponge. Dr. David Livingston further testified that the combination of leaked bowel content, a colon injury, splenectomy, and shock significantly increased the likelihood of intraabdominal infection. This supports Dr. Gracias' assertion that the surgery was not a definitive closure.

The court found the previous paragraph unnecessary due to the established standard of review. The jury determined that the nursing staff did not breach their standard of care, as accurately counting sponges was not critical in this context. Consequently, a directed verdict or judgment n.o.v. against the nursing staff was deemed inappropriate. 

The appellant's claim that the court erred in denying a directed verdict against Dr. Gracias was also unfounded. Dr. Livingston noted that the nurses' records indicated 14 sponges were accounted for, leading Dr. Gracias to believe that all sponges were removed without the need for further invasive measures given Mr. Faherty's liver condition.

The appellant's argument regarding the failure to instruct the jury on res ipsa loquitur was waived. The trial judge noted that the request for this instruction was not revisited or objected to during the jury charge, and the appellant did not raise the issue before the jury began deliberation. As established in *Dilliplaine v. Lehigh Valley Trust Co.*, a timely objection is necessary to allow the trial judge the opportunity to correct potential errors, which the appellant failed to do.

Appellate courts are not required to review issues that were not ruled on by the trial court, allowing the trial court to promptly correct alleged errors and potentially avoid appellate review altogether. If a new trial is warranted, it can be granted without the costs and delays associated with appellate processes. This framework also prevents trial lawyers from relying on appellate courts to rectify trial oversights. In the case of Dilliplaine v. Lehigh Valley Trust Co., the trial judge did not rule on the appellant's proposed jury instruction, which limited the trial court's ability to correct any errors and raised concerns about preserving issues for appeal. The appellant contends that merely submitting a jury charge preserves the issue for review, citing Pennsylvania law that allows issues to be preserved without a formal exception if a ruling is made against a charge. However, the court emphasized that a ruling is essential for preservation, leading to the conclusion that the failure to rule on the proposed charge resulted in waiver of the issue. Consequently, all claims by the appellant were either waived or found meritless, resulting in the affirmation of the trial judge's judgment. Judge Gantman concurred but expressed the view that a res ipsa loquitur instruction was not necessary in this instance.

A significant drop in blood pressure and a high heart rate were observed due to bleeding. Dr. David Befeler explained that acidosis occurs when the body's metabolism relies on oxygen, leading to lactic acid buildup, especially in cases of muscle injury. The mesentery connects the small bowel to the abdominal wall, and an exploratory laparotomy allows doctors to visually assess and address abdominal issues. Laparotomy pads, similar to kitchen towels and made of cheesecloth, contain a radiopaque marker for X-ray visibility to locate any pads left inside post-surgery. Multiple organ failure, often resulting from sepsis and severe trauma, involves failing more than two organs. Sepsis is characterized by an overwhelming infection, typically occurring when bacteria invade normally sterile areas of the body, and if the immune response fails, it can lead to septic conditions. According to Pennsylvania Rule of Civil Procedure 227(a), exceptions to trial judge rulings do not need to be explicitly stated during trial, as they are automatically considered taken for the party affected by the adverse ruling.