Plaintiff wins med-mal trial in Grand Traverse County

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For the first time since 1997, a plaintiff has won a medical malpractice trial in Grand Traverse County.

In Estate of Thomsen v. Nizzi, a jury awarded $836,000 when determining after a seven-day trial that Dr. Michael Nizzi failed to order a sleep study before a patient’s bariatric surgery on June 1, 2015, which set off several negative effects after the operation.

Plaintiff’s counsel Stephanie Hoffer of Hoffer & Sheremet PLC in Grand Rapids claimed that the defendant failed to adequately advise the plaintiff of the significantly increased risk untreated sleep apnea posed with an open Roux-en-Y surgery.

Hoffer also said a sleeve gastrectomy would have been a safer alternative to the surgery underwent by the plaintiff.

“The issue was the fact that he had not been diagnosed and treated before bariatric surgery,” Hoffer said.

Background

Hoffer said the plaintiff was having trouble oxygenating after the surgery. The plaintiff suffered respiratory failure and aspirated during intubation, which resulted in pneumonia and sepsis.

Eight days after the operation, the plaintiff began vomiting. The defendant inserted a tube to stop the vomiting, but he did not order a CT scan to determine if there was a bowel obstruction causing the vomiting, according to plaintiff’s counsel.

The plaintiff’s bowel perforated several days later and required two additional surgeries. The plaintiff eventually needed abdominal reconstructive surgery a year and a half later.

The plaintiff contracted leukemia after the reconstructive surgery, and because a prior complication of his bowel obstruction recurred, doctors had to stop his leukemia treatment.

“The cancer recurred, and it knocked him out within days,” Hoffer said of the plaintiff, who died in April 2018.

Legal strategy

Hoffer’s co-counsel Aubri Sheremet said she knew the medical background of the case was complicated, but there were multiple ways to show malpractice.

“We tried to make it as easy for them as possible. We diagrammed three routes to verdict, starting with this is the standard of care required, this is how it was breached, this is the causal link, and here are the damages. That was all graphed out for them,” Sheremet said.

Sheremet said a key piece of evidence was a form that showed the sleep study was on a pre-operative checklist. The list said “no” for that category.

“I think that form was very powerful to the jury because their defense was to say our client refused a sleep study. We said no, if he refused the sleep study, the form would have said ‘patient refused.’ A member of their office staff also testified that our client told her that Nizzi said he didn’t need a sleep study, and she confirmed that with Nizzi,” Sheremet said.

Sheremet thought the defendant lost credibility with the jury during that portion of the trial.

“When he was testifying, he tried to give a very different answer as to his recollection of his conversation with our client than he gave me during his deposition,” Sheremet said.

For breaking the 22-year streak of medical malpractice trials going against plaintiffs, Hoffer said voir dire was key to winning.

“Talking about and being upfront with all of the issues, getting that out in the open, I think it made a difference in this case,” Hoffer said.

Sheremet said that Munson Medical Center, where the defendant is employed, is a large and well-known employer in the community, which makes it hard for plaintiffs to win trials.

“Everyone knows Munson Medical Center, they know someone who works there or one of the doctors. It’s a small community and Munson is a huge employer. I think that might have a lot to do with it,” Sheremet said. “It’s a conservative area, so I think you’re starting out with the plaintiff being behind the eight ball.”

Hoffer reported that her side offered to settle the case within the doctor’s insurance limits, but the defense refused. The jury’s verdict amount of $836,000 was 40 percent over the insurance limits.

The jury did not rule in favor of the plaintiff’s wrongful death claim. Hoffer said she believes that was because the jury didn’t think he had a greater than 50 percent chance to survive with treatment.

Defense attorney Kevin Lesperance did not respond to requests for comment on this case.

If you would like to comment on this story, email Thomas Franz at [email protected].