Mercker v. Abend

581 S.E.2d 351, 260 Ga. App. 836, 2003 Fulton County D. Rep. 1357, 2003 Ga. App. LEXIS 453
CourtCourt of Appeals of Georgia
DecidedMarch 28, 2003
DocketA02A1832
StatusPublished
Cited by12 cases

This text of 581 S.E.2d 351 (Mercker v. Abend) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mercker v. Abend, 581 S.E.2d 351, 260 Ga. App. 836, 2003 Fulton County D. Rep. 1357, 2003 Ga. App. LEXIS 453 (Ga. Ct. App. 2003).

Opinions

Phipps, Judge.

Dr. Melvin Abend performed laparoscopic surgery on Suzanne Estee Mercker to remove her gallbladder in treatment for gallstones. Because of persistent bile leakage thereafter, Mercker underwent multiple repair surgeries. She filed a medical malpractice suit against Abend and his professional corporation, Melvin N. Abend, M.D., P.C., alleging they were liable for permanent damage to her biliary system. A jury found in favor of the defendants. Mercker appeals, contending that the trial court erred in charging the jury. Because Mercker has demonstrated no reversible error, we affirm.

During a laparoscopic cholecystectomy on Mercker on August 4, 1998, Dr. Abend unintentionally perforated the cystic duct. Because bile began to leak from the hole, Abend realized what he had done. He testified that “[t]he cystic duct was transected in the process of thé gallbladder removal at the level that the hole was.” He left a bile drainage tube in the area of the cystic duct. Abend testified that he did so “[n]ot because of the perforation of the cystic duct per se,” but “as part of the overall assessment,” which included a coarse, thickened gallbladder, the difficulty of the dissection, and abdominal adhesions. Before discharging Mercker from the hospital on August [837]*8375, Abend assured her that the tube was there because there might be some leakage, but that it would heal within a few days.

But on August 11, Mercker reported to Abend that bile continued to leak. Tests performed the next day revealed blockage of the bile duct, but not the source of the leakage. On August 13, Abend performed open repair surgery and discovered that during the cholecystectomy, he had erroneously placed a clip on the common bile duct, cut the common hepatic duct, and cut an accessory duct. According to Abend, he corrected those errors during the repair surgery.

But Mercker continued to leak bile. Because of the unexplained leakage, on October 7, Abend referred Mercker to Dr. Charles Staley. In April 1999, Staley performed the same type of repair surgery on Mercker as had Abend. The leakage persisted, although at a reduced rate. After confirming in May that the leakage was stemming from a small branch of Mercker’s right biliary system, Staley performed another surgery in July, which stopped the leakage, but removed half of Mercker’s liver. According to Staley, the liver usually regenerates within six months to a year, but Mercker faces certain lifelong health risks and her liver function must be monitored at least annually for the rest of her life.

In her lawsuit, Mercker did not contend that the perforation of her cystic duct occurred as a result of negligence. Rather, she claimed that Abend could not adequately see what he was doing during the laparoscopic procedure and therefore was negligent in failing to convert to an open procedure and in failing to perform a cholangiogram, a procedure whereby dye is injected into the biliary system to assist a physician in identifying parts of the anatomy. She further alleged that not doing either led to him erroneously placing a clip on her common bile duct and cutting her common hepatic duct. Mercker also claimed that Abend was negligent in not referring her to another physician for the initial repair surgery.

At trial, Mercker presented medical expert testimony that if a surgeon, at any point while performing a laparoscopic cholecystectomy, is not completely sure of the patient’s internal anatomy or encounters “any kind of leak, hole, injury to anything that [he is] not satisfied with, any bleeding that [he] can’t control,” the standard of care requires the surgeon to convert the procedure to an open one, whereby he can have a better view of and access to the internal anatomy.1 Her medical expert, who had read Abend’s deposition, opined that Abend had not been sure of what he had perforated during the [838]*838surgery and therefore was negligent in not either converting to an open procedure or performing a cholangiogram. The expert testified that not doing either led to further acts of negligence: while intending to clip and cut the cystic duct, Abend erroneously placed a clip on the common bile duct and cut the common hepatic duct. Mercker’s expert also opined that Abend was negligent in not referring Mercker to a specialist for the first repair surgery.

But Abend’s medical expert, who had reviewed Mercker’s medical records, the operative report, and Abend’s deposition, testified that the standard of care did not require conversion to an open procedure because, in his opinion, Abend felt comfortable that he had identified the pertinent internal structures and was not confused about Mercker’s anatomy. Abend’s medical expert also testified that a cholangiogram subjects the patient to certain risks and should be done only if the physician believes that the patient has stones in the common bile duct. Because there was no indication of that condition, Abend’s expert testified, the standard of care did not require Abend to perform a cholangiogram. He testified that in all of Abend’s care of Mercker, Abend met the standard of care.

The assistant surgeon during Mercker’s initial surgery, Dr. Arnold Rosen, testified that during the laparoscopy, he could see Mercker’s anatomy and thought that Abend was properly clipping and cutting her cystic duct. He had not known that Abend had caused any problematic injury to Mercker. Rosen explained that the drainage tube had been left in Mercker because her gallbladder was “thickened” and, in dissecting it from the liver, there was “oozing from the liver bed,” and those circumstances commonly lead to leaving a drain in case of blood collection or bile drainage from the liver bed. Rosen gave an explanation for why a cholangiogram had not been done. He testified that the standard of care did not require conversion to an open procedure and that Abend’s performance was within the standard of care.

Abend testified that at the time of the surgery, he was “certain” of Mercker’s anatomy. He stated, “[a]t the time of doing the laparoscopic chole [cystectomy], I had no hint that there was any complication occurring. Had there been, there would have been an open procedure.” He stated that he had met the standard of care in treating Mercker.

1. Mercker contends that the trial court should not have charged the jury on hindsight. Over objection, the court charged:

[A] defendant cannot be found negligent on the basis of an assessment of a patient’s condition which only later or in [839]*839hindsight proved to be correct [sic],2 so long as the initial assessment was made in accordance with the reasonable standard of medical care. The concept of negligence does not encompass hindsight.

A hindsight charge instructs the jury “on the distinction between foresight and hindsight, the former of which is the basis for a negligence claim.”3 It instructs the jury that “an after-the-fact assessment of facts or evidence cannot be the basis of a negligence claim ‘so long as the initial assessment was made in accordance with the reasonable standards of medical care.’ ”4 In a medical malpractice case, a hindsight charge is authorized “where the evidence raises an issue as to whether the negligence claim is based on later acquired knowledge or information not known or reasonably available to the defendant physician at the time the medical care was rendered.”5

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Mercker v. Abend
581 S.E.2d 351 (Court of Appeals of Georgia, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
581 S.E.2d 351, 260 Ga. App. 836, 2003 Fulton County D. Rep. 1357, 2003 Ga. App. LEXIS 453, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mercker-v-abend-gactapp-2003.