Advances in interventional radiology have saved many lives. But the specialty still has its limitations, as illustrated by a recent Johnson County, Kan., wrongful death case that resulted in a policy limits settlement.
In September 2010, a 60-year-old husband and father of three adult sons underwent a chest x-ray in advance of joint replacement surgery. The x-ray revealed that an inferior vena cava (IVC) filter placed more than two years earlier had migrated to the juncture of the IVC and the right atrium of the heart. The patient was referred to an interventional radiologist to determine whether and how the filter should be removed.
Two days later, the interventional radiologist tried to remove the filter percutaneously by inserting wires through the jugular and femoral veins. During removal, the filter tore a 4 cm hole in the patient’s right atrium. The patient’s blood pressure plummeted, resulting in severe brain damage. The patient died two days after the procedure.
Lynn Johnson and David Morantz pursued a case on the family’s behalf against the interventional radiologist, claiming that the filter’s position in or near the right atrium made percutaneous removal too riskily. At deposition, the interventional radiologist testified that before the procedure he had consulted with a cardiothoracic surgeon, who he claimed had recommended percutaneous removal.
The Petition was amended to add the cardiothoracic surgeon. His deposition contradicted the interventional radiologist’s claims. Medical records confirmed that the cardiothoracic surgeon had never formally consulted on the case before the percutaneous removal. He moved for summary judgment based on the lack of a legal duty.
Plaintiff did not oppose this motion but obtained a ruling preventing the interventional radiologist from alleging fault against the cardiothoracic surgeon at trial — based on the principle that a party who a court has determined has no legal duty cannot appear on the verdict form for comparative fault.
The case proceeded against the interventional radiologist. Plaintiff’s interventional radiology experts opined that the percutaneous removal was a doomed approach because of how long the filter had been in or near the right atrium. CT studies performed in 2008 confirmed that the filter had migrated to within or near the right atrium two years before the subject surgery. That meant the tissue of the IVC and right atrium had grown, or endothelialized, around portions of the filter, including the hooks/barbs designed to hold it in place. The experts testified that the interventional radiologist should have checked the films before attempting removal, which should have dissuaded him from the procedure.
Expert testimony also focused on the type of IVC filter in the patient. Some filters are temporary and designed to be removed. Such filters have uni-directional hooks/barbs, which help hold the filter in place while allowing the filter to be retracted percutaneously. The patient had a permanent filter. It had dual-directional hooks/barbs, making it more likely to catch and tear the vessel walls during removal.
Plaintiff also hired an expert in pathology to help illustrate how tissue had grown around the filter and how the endothelialized filter tore the walls of the IVC and right atrium during removal. An economic expert testified about the future earnings of the decedent, who worked as a sales executive.
The case settled for the interventional radiologist’s $1 million policy limits before the depositions of the defendant’s experts. Much of the value of the case resulted from the likelihood that a jury would return significant Wentling damages for the loss of a husband and father of an extremely close family. The decedent was survived by his wife of 37 years and three adult sons, all of whom were prepared to testify in detail about the guidance, teaching, and counseling they continued to seek from their father even after leaving the house.
Shamberg, Johnson & Bergman, Chtd., is honored to have represented such a close and loving family.