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Wipf v. Kowalski

March 12, 2008


Appeal from the United States District Court for the Southern District of Illinois. No. 05 C 4078-J. Phil Gilbert, Judge.

The opinion of the court was delivered by: Sykes, Circuit Judge.


Before ROVNER, WOOD, and SYKES, Circuit Judges.

While performing a laparoscopic cholecystectomy to remove Nicki Wipf's gallbladder, Dr. Lisa Kowalski accidentally cut Wipf's common bile duct. As a result, Wipf underwent various corrective procedures with painful side effects. Wipf filed a diversity suit against Dr. Kowalski and her employer, Marshall Clinic Effingham, S.C., for medical malpractice, and a jury found Dr. Kowalski had not breached the applicable standard of care. On appeal Wipf argues the jury's verdict is against the manifest weight of the evidence, or alternatively, a new trial is warranted based on various erroneous evidentiary and other rulings by the district court. Because the jury's verdict is supported by the evidence and the district court did not abuse its discretion in its evidentiary and other rulings before and during trial, we affirm.

I. Background

In mid-April 2003, Nicki Wipf went to her family doctor complaining of recurrent epigastric pain. Wipf's doctor referred her to a surgeon, Dr. Lisa Kowalski, who recommended an operation to remove Wipf's gallbladder. On May 1, 2003, Dr. Kowalski performed a laparoscopic cholecystectomy ("lap-chole," for short), a procedure that involves transecting two structures: the cystic artery and the cystic duct. Dr. Kowalski, however, made a mistake and cut Wipf's common bile duct, having mistaken it for the cystic duct. She realized her error later in the procedure.

Dr. Kowalski notified Wipf's family of the mistake and had Wipf transported by ambulance to Barnes-Jewish Hospital in St. Louis where another surgeon, Dr. Linehan, performed a corrective operation the following day. That procedure involved cutting a section of Wipf's small bowel and using it to create a new bile duct. After this operation, Wipf's follow-up care was overseen by Dr. Picus. When Wipf later developed a duct blockage, Dr. Picus performed a procedure to insert a catheter into Wipf's bile duct to drain bile and thereby avoid further blockage or damage. Wipf's subsequent treatment included dilating the reattachment site where the bile duct and the small bowel were sewn together, and catheter maintenance and replacement. Around April 2004 (almost one year after the lap-chole went awry), Wipf's catheter was removed.

A year later, Wipf filed a diversity action in federal court alleging medical negligence. A jury found for Dr. Kowalski and the Marshall Clinic. Wipf moved for judgment as a matter of law or, in the alternative, for a new trial. The motion was denied, and Wipf's timely appeal followed.

Wipf argues, as she did in her posttrial motions, that the jury's verdict is against the manifest weight of the evidence; she also raises several evidentiary and jury instruction issues. Accordingly, a summary of the medical testimony pertaining to lap-choles in general and Wipf's procedure in particular is in order. The medical experts testified that during a typical lap-chole, the surgeon inserts three or four "trocars"-narrow, sleeve-like tubes- into small incisions in the patient's abdomen. Various tools, including a light source, clasps, retractors, a camera, and a cutting instrument, can then be passed through the trocars. The surgeon does not view the patient's organs directly as he would during an "open" procedure; instead, a camera is passed through one of the trocars which transmits a magnified image that the surgeon views on a screen or monitor.

Using the screen images as a guide, the surgeon identifies the anatomy in the hepatobiliary*fn1 region before transecting certain structures. The surgeon must transect two structures: the cystic artery and the cystic duct. There are different methods for identifying the appropriate anatomical structures before proceeding, and this is where the expert testimony diverged.

Dr. Kleier, a surgeon and Wipf's expert witness, explained that the gallbladder is generally encased in fatty tissue, and the surgeon must pull away this tissue in order to identify the two structures exiting the gallbladder that need to be transected. Dr. Kleier opined that several methods of identifying biliary anatomy should be employed to avoid any mistaken identification; if these methods are properly used, he testified, the surgeon should never transect the wrong duct. Dr. Kleier testified that the surgeon must achieve "the critical view"-a view of the area where both the artery and duct are visible coming directly out of and attached to the gallbladder-through meticulous dissection. If the surgeon is still uncertain about the location or identity of structures after using this process, he should perform a cholangiogram, which involves a type of x-ray in which dye is injected through a catheter into the cystic duct to identify structures. Alternatively, he testified, the surgeon should convert to a nonlaparoscopic or "open" procedure.

The standard of care, according to Dr. Kleier, requires identification of the cystic duct with absolute certainty before transection, a standard Dr. Kleier maintained Dr. Kowalski breached. Drawing upon guidelines issued by the Society of American Gastrointestinal and Endoscopic Surgeons, Dr. Kleier testified that Dr. Kowalski failed to meticulously dissect Wipf's anatomy and failed to properly achieve the critical view. Dr. Kleier also testified that Dr. Kowalski did not properly retract the gallbladder during the procedure, thus obscuring her view, and failed to either perform a confirmatory cholangiogram or convert to an open procedure.

Dr. Scott Peckler, a general surgeon and one of Dr. Kowalski's experts, disagreed with Dr. Kleier's conclusion that Dr. Kowalski had breached the standard of care. Dr. Peckler testified that no method of identification, including the critical view, is free of potential risks or errors. He explained that a surgeon is required to satisfy himself that he has correctly identified the relevant anatomical structures, and according to Dr. Peckler, that is what Dr. Kowalski did. She used three of four available identification techniques: (1) the "infundibular" technique, which involves stripping off tissue to identify the cystic duct; (2) the critical view, which Dr. Peckler described as dissecting out an anatomical structure called the Triangle of Calot;*fn2 and (3) dissecting the cystic duct in order to perceive it merging with the common hepatic duct to form the common bile duct.In contrast to Dr. Kleier's position, Dr. Peckler opined that the standard of care did not require Dr. Kowalski to perform a cholangiogram-a procedure that he testified would have entailed its own risks. Another surgeon and expert for the ...

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