Michigan Verdicts

Plaintiff(s):

Estate of Karl Thomsen (Male, 57 Years)

Plaintiff Attorney(s):

Stephanie C. Hoffer;
Hoffer & Sheremet, PLC;
Grand Rapids,
MI,
for
Estate of Karl Thomsen ■ Aubri Sheremet;
Hoffer & Sheremet, PLC;
Grand Rapids,
MI,
for
Estate of Karl Thomsen

Plaintiff Expert(s):

Eric Gluck; M.D.; Pulmonology; Chicago,
IL called by:
Stephanie C. Hoffer, Aubri Sheremet ■ Kyle Ver Steeg; M.D.; Plastic Surgery/Reconstructive Surgery; Traverse City,
MI called by:
Stephanie C. Hoffer, Aubri Sheremet ■ Jeffrey Gordon; M.D.; Oncology; Woodstock,
CT called by:
Stephanie C. Hoffer, Aubri Sheremet ■ Alexander Nagle; M.D.; General Surgery; Chicago,
IL called by:
Stephanie C. Hoffer, Aubri Sheremet

Defendant(s):

Michael Nizzi, 

Munson Medical Center, 

Grand Traverse Surgery P.C.

Defense Attorney(s):

Kevin M. Lesperance;
Henn Lesperance PLC;
Grand Rapids,
MI,
for
Michael Nizzi, Grand Traverse Surgery P.C. ■ None reported;
for
Munson Medical Center

Defendant Expert(s):

Dale Bixby;
Oncology;
Ann Arbor,
MI called by:
Kevin M. Lesperance ■ John Krcmarik;
Pulmonology;
Traverse City,
MI called by:
Kevin M. Lesperance ■ John Stratton;
Anesthesiology;
Traverse City,
MI called by:
Kevin M. Lesperance ■ Ryan Holmes;
Radiology;
Traverse City,
MI called by:
Kevin M. Lesperance ■ Randal Baker;
General Surgery;
Grand Rapids,
MI called by:
Kevin M. Lesperance

Insurer(s):

Coverys for Nizzi and Grand Traverse Surgery PC

On June 1, 2015, plaintiff Karl Thomsen, 57, a respiratory therapist, presented to Munson Medical Center in Traverse City for bariatric surgery. General surgeon Michael Nizzi, D.O. performed the Roux-en-Y. Thomsen subsequently suffered numerous complications, including a bowel fistula. Thomsen sued Nizzi and Munson Medical, alleging medical malpractice. He also sued Nizzi’s employer, Grand Traverse Surgery P.C., for vicarious liability. A few months into the litigation, Thomsen was diagnosed with leukemia. He then allegedly suffered a recurrence of the fistula that prevented him from continuing his cancer treatment. He died from cancer in April 2018 at the age of 60. He left behind his life partner, Jill Walker, and two adult kids. Walker took over the lawsuit as the representative of Thomsen’s estate. The lawsuit was subsequently amended to include both medical malpractice and wrongful death claims. Munson was dismissed early in the case. The trial only dealt with the claims against Nizzi and Grand Traverse Surgery. Prior to the surgery, Thomsen received a sleep apnea assessment from an admissions nurse and another physician. The assessments showed that Thomsen had a very high likelihood of severe obstructive sleep apnea. Walker argued that this apnea led to the post-surgical complications and that Nizzi should not have performed the bariatric surgery until the apnea was under control. Walker further claimed that Thomsen’s prior abdominal surgery, age and high BMI all significantly increased his risk of post-surgical complications from an open Roux-en-Y. Walker also argued that the risk was significantly lower for a laparoscopic sleeve gastrectomy and that Nizzi should have informed Thomsen about these relative risks. Walker additionally alleged that, while no surgery should have been performed on June 1, if Nizzi was going to do a surgery on that date, he should have performed the less risky sleeve gastrectomy. Thomsen had previously been diagnosed with gastroesophageal reflux disease (GERD), which is a relative contraindication for a sleeve gastrectomy. However, plaintiff’s counsel noted that Dr. Nizzi did a pre-operative procedure that showed Thomsen had no erosive changes to his esophagus and removed the pre-op diagnosis of GERD in his post-op findings. Thus, per plaintiff’s counsel, a sleeve gastrectomy would have been a safer option. Walker further claimed that untreated sleep apnea increases the risk of complications during a Roux-en-Y, but not during a sleeve gastrectomy. Following the surgery, Thomsen suffered a bowel herniation that led to a section of the bowel becoming necrotic. It then became perforated. Per plaintiff’s counsel, Thomsen started vomiting on June 9 while he was still in the hospital recovering from the surgery. Nizzi then inserted a nasogastric tube to stop the vomiting and removed purulent secretions from the stomach. Walker asserted that Nizzi should have then performed a CT scan to determine the cause of the vomiting. Walker argued that this would have shown the bowel obstruction and allowed doctors to address the issue before the bowel became necrotic. The defense maintained that Nizzi followed the proper standard of care. The defense specifically noted that Thomsen did not have any complications or problems immediately after the bariatric surgery. The defense additionally argued that the change in Thomsen’s condition on June 9 was not severe enough to warrant a CT scan. The defense also retained a general surgeon who stated that Nizzi had properly explained the risks of the Roux-en-Y to Thomsen before the procedure.

Several days after the initial bariatric surgery, Thomsen began to suffer from respiratory failure. Thomsen was subsequently intubated and aspirated his vomit during the difficult intubation. Per Thomsen’s estate, difficult intubations are foreseeable among those with sleep apnea. The aspiration subsequently led Thomsen to develop sepsis. Plaintiff’s counsel claimed the sepsis made it hard for Thomsen’s surgical wound to heal properly, which allegedly led to the bowel herniation. Thomsen’s estate argued that Thomsen continued to deteriorate after he started vomiting on June 9, though the tube placement generally relieved his symptoms. By June 13, the bowel had become necrotic and perforated. Thomsen underwent immediate emergency surgery that day, but only one surgeon was available at the time. The surgeon was thus limited in how much damage he could repair. Thomsen required a subsequent surgery the following day. That procedure was performed by Nizzi and the doctor who had performed the June 13 procedure. During the June 14 surgery, the doctors sewed up the wound from the bariatric surgery. They also removed the dead portion of Thomsen’s bowel and reconnected the healthy portions. Thomsen’s abdominal muscles were pulled apart as part of the June 13 and 14 procedures. Thomsen was discharged from the hospital on July 28 with an open abdominal wound and a fistula. He could not eat or drink anything and had to be hooked up to an IV for his nutrition. He also required a home health care nurse for two months. He underwent a skin graft surgery in September 2015 to cover the wound. However, because his fistula was still draining at that time, doctors could not put the skin graft over the site of the fistula. Thomsen underwent another surgery in November 2016 to repair his abdominal muscles. Thomsen was then diagnosed with leukemia on Feb. 10, 2018. He underwent induction treatment and the cancer initially went into remission. However, on February 28, doctors confirmed that his fistula had recurred. With the recurred fistula, Thomsen could not continue with the second phase of treatment. Thomsen was reportedly forced to postpone his cancer treatment until the fistula healed. The leukemia came back and he died in April 2018. Plaintiff’s counsel presented a pulmonology expert who opined that Thomsen’s sleep apnea led to the respiratory failure. Plaintiff’s counsel presented an oncology expert who opined that Thomsen would have survived his cancer if he had been able to continue with his treatment. For the medical malpractice claim, the state sought damages for Thomsen’s past medical expenses and wage loss, along with damages for past pain and suffering. For the wrongful death claim, the estate sought past and future economic and non-economic damages for Thomsen’s family. The defense called Thomsen’s treating radiologist, who noted that Thomsen had a fistula in March 2018 that was in a different spot than the one he had in June 2015. The defense thus argued that this 2018 fistula was unrelated to the bariatric surgery complications. Plaintiff’s counsel, however, countered that Thomsen had a fistula in February 2018 that was in the same spot as the 2015 fistula and that these two fistulas were likely related. Plaintiff’s counsel additionally alleged that Thomsen’s cancer treatment was postponed because of the February 2018 fistula, not the one from March 2018. Plaintiff’s counsel further argued that the March 2018 fistula likely resulted from the fistula that developed in February. The defense’s oncology expert also asserted that Thomsen would have died from leukemia, even if he had been able to complete his cancer treatment.

The jury found for Nizzi and Grand Traverse on the wrongful death claim, but found for Thomsen’s estate on the medical malpractice claim. The jury determined that the estate’s damages totaled $836,000.

Estate of Karl Thomsen: $500,000 Personal Injury: past non-economic damages; $336,000 Personal Injury: past economic damages

Judge:

Thomas G. Power

Demand:

$600,000

Offer:

None

Trial Length:

8
 days

Trial Deliberations:

1
 hours

Jury Vote:

5-2

Jury Composition:

1 male/ 6 female

This report is based on information that was provided by plaintiff’s counsel. Additional information was gleaned from court documents. Defense counsel for Nizzi and Grand Traverse Surgery P.C. did not respond to the reporter’s phone calls. Defense counsel for Munson Medical Center was not asked to contribute to the report.