Contact me at markploftus@aol.com

A few words about a case I am presently litigating. I represent the children of a woman who died shortly after having heart surgery. She was in her early 60's and had significant heart disease as well as other health complications. In late December of 2001 she has chest pain, is seen at the hospital and it is decided she needed urgent bypass surgery due to extensive blockage in the arteries and veins associated with the heart. Surgery is undertaken that very day.

The surgeon does three separate bypasses. At the end of one of the bypasses he uses a mechanical device manufactured by a large medical instrument company. The surgery appears to go well, and the blood appears to be flowing around the blockages. The doctor closes the chest but even before the patient leaves the surgical suite the EKG shows abnormalities and her blood pressure becomes erratic. The surgeon immediately suspects something is going on with a bypass and unfortunately, has to re-open the chest. He checks each bypass and determines the bypass with the device is not working - there is no blood flow. He removes the instrument and checks inside it. There is a piece of vein obstructing the movement of blood. He removes the vein, TOSSES THE DEVICE and closes on the patient. She never really comes back. About 10 hours later, she dies.

I depose the surgeon on Wednesday. I anticipated going in he wasn't going to help me establish any sort of case against the manufacturer. But he suprises me. He testifies the device did indeed cause the blockage that necessitated re-opening her chest. And he goes on to say that going back into the chest complicated the recovery picture. It is his opinion that the lady would have lived longer had the device not caused the blockage[although he wouldn't opine how long]. Finally, he admits the device did not perform as he had expected. He no longer uses that device in heart surgeries.

Finally, one more fact. The company making these devices had skirted traditional FDA requirements before getting it on the market. Shortly after the device was placed on the market, they started getting reports that the bypass devices were causing heart attacks, angina and worse. Sounds promising, right? I thought so too.

But I am actually taking a long hard look at this case. There is an unpleasant math associated with these lawsuits. They are VERY EXPENSIVE to litigate. In order to justify the time and significant expense you would be putting into this case, you have to be looking at a large settlement or verdict. And that isn't a sure thing here. First, there is some factual uncertainty about when exactly the clot formed. So the defense could, and probably will argue that the clot may have lodged in there just moments befor the device was removed, and as a result, wasn't causing the blockage. In addition, they will certainly argue that the patient's life expectancy was minimal in light of her other health problems. In short, this argument, reduced to its lowest[and I mean lowest]common denominator is "Hey, she was dying anyway, we didn't really cause any harm". [As an aside I have yet to hear a defense lawyer make that argument sound good]. So now my job is to explain to a family that lost their mom, probably through negligence, why they might want to think about settling this case - and if they settle, they won't get a chance to rant at this manufacturer who seemingly ignored the responsibility they have to put a decent product into the commerce screen. I will talk to the clients next week and post another update.