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Carolinas Verdicts

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Duct misidentification is a known risk, per surgeon

Type:

Verdict-Defendant

State:

South Carolina

Venue:

Horry County

Court:

Horry County, Court of Common Pleas

Injury Type(s):

other-stricture; other-anastomosis; other-loss of consortium; abdomen; mental/psychological-emotional distress; gastrointestinal/digestive-bile duct

Case Type:

Medical Malpractice - Surgeon, Surgical Error, Delayed Treatment, Negligent Treatment, Wrong Site/Procedure

Case Name:

John W. Kovalcik, individually and as representative of the Estate of Judith Kovalcik v. Michael H. Ellis, M.D., Associates in Surgery, P.A. and Conway Medical Center, No. 2014CP2606098

Date:

August 25, 2016

Parties

Plaintiff(s):

Judith Kovalcik (Female, 70s), 

John W. Kovalcik (Male, 79 Years)

Plaintiff Attorney(s):

O. Fayrell Furr Jr.; Furr & Henshaw; Myrtle Beach, SC, for Judith Kovalcik, John W. Kovalcik ■ Brenda Kline; Furr & Henshaw; Myrtle Beach, SC, for Judith Kovalcik, John W. Kovalcik

Plaintiff Expert(s):

Arden Weathers; M.D.; General Surgery; Orangeburg, SC called by: O. Fayrell Furr Jr., Brenda Kline ■ Francis Barnes; M.D.; General Surgery; Columbus, OH called by: O. Fayrell Furr Jr., Brenda Kline

Defendant(s):

Conway Medical Center, 

Michael H. Ellis, M.D., 

Associates in Surgery, P.A.

Defense Attorney(s):

John B. McCutcheon Jr.; Thompson & Henry, P.A.; Conway, SC, for Conway Medical Center ■ Lydia Lewis Magee; Richardson Plowden Law Firm; Myrtle Beach, SC, for Michael H. Ellis, M.D., Associates in Surgery, P.A. ■ Marian W. Scalise; Richardson Plowden Law Firm; Myrtle Beach, SC, for Michael H. Ellis, M.D., Associates in Surgery, P.A.

Defendant Expert(s):

Brendan Murphy; General Surgery; Mt. Pleasant, SC called by: Lydia Lewis Magee, Marian W. Scalise

Insurer(s):

MagMutual Insurance Co. for Michael H. Ellis, M.D. and Associates in Surgery, P.A.; Palmetto Health Liability Insurance Program for Conway Medical Center

Facts:

On April 29, 2013, plaintiff John Kovalcik, 79, a retired marine, was admitted to Conway Medical Center in Conway. Kovalcik underwent an elective laparoscopic cholecystectomy surgery performed by general surgeon Michael Ellis, M.D. to treat gallstones. During the procedure, Ellis unintentionally lacerated the common bile duct and common hepatic duct while attempting to cut the cystic duct and artery. Kovalcik required surgical repair of the ducts. Kovalcik sued Ellis and his surgical practice, Associates in Surgery, P.A. He alleged Ellis failed to properly perform the cholecystectomy and departed from the accepted standard of care. Kovalcik further alleged that Ellis could have repaired the ducts intraoperatively on the date of loss if he had recognized that the incorrect ducts had been cut. Conway Medical Center was initially named as a defendant in the suit but was dismissed prior to trial. The case proceeded against Ellis and his practice only. Kovalcik's general surgery expert testified that the surgical error occurred due to Ellis' placement of a medical stapler device. He opined that Ellis should have opted for open surgery rather than a laparoscopic procedure or utilized a cholangiogram intraoperatively to identify the correct duct. Ellis denied liability, arguing that the procedure was performed as intended, but that duct misidentification was a known risk of the surgery. Ellis maintained there was no departure from the accepted standard of care. Ellis' general surgery experts testified that Ellis met the standard of care by attempting to identify the cystic duct and artery, even though he misidentified them. The surgeons argued that relevant medical literature does not require open surgery or a cholangiogram to be attempted for this manner of procedure.

Injury:

The day after surgery, Kovalcik returned to the hospital with complaints of intense abdominal pain. A stent was placed in Kovalcik's abdomen in order to help drain bile. He was transferred to MUSC Medical Center and hospitalized. Kovalcik received additional abdominal stents. Three months later, Kovalcik underwent Roux-en-Y anastomosis in order to repair the damaged ducts. Prior to undergoing revision surgery, Kovalcik claimed he was limited in his ability to leave his home. He claimed he experienced emotional distress and embarrassment due to his condition. He believes he is at risk for developing duct strictures and may require further abdominal surgery. Kovalcik claimed $240,000 in total medical expenses. His wife, Judith Kovalcik, brought a claim for loss of consortium. She died prior to trial and the per quod claim continued to trial on behalf of her estate. Damages were not in dispute.

Result:

The jury found that Ellis did not violate the standard of care and a defense verdict was entered.

Trial Information:

Judge:

R. Ferrell Cothran Jr.

Trial Length:

4  days

Trial Deliberations:

1  hours

Jury Vote:

unanimous

Jury Composition:

4 male/ 8 female

Post Trial:

Kovalcik's motion for judgment notwithstanding the verdict was denied.

Editor's Comment:

This report is based on information that was provided by defense counsel. Plaintiff's counsel did not respond to the reporter's phone calls.