Martha Sellers died in February 2002 from complications following gastric bypass surgery performed by Dr. Celio Burrowes. Her husband, Howard Sellers, sued Burrowes, alleging the doctor committed malpractice by failing to give Mrs. Sellers blood thinners after the surgery, which allowed a blood clot to form and lodge in her lungs, leading to a series of events that ended with Mrs. Sellers’ death. The jury returned a defense verdict,1 and Sellers appeals, contending that the trial court erred by 1 expressing an opinion as to whether certain facts had been proven; 2 making certain evidentiary rulings; and 3 denying Sellers’ request to give a jury charge on concurrent negligence. For the reasons that follow, we affirm the verdict. The evidence at trial revealed that Mrs. Sellers was clinically obese and suffered from numerous health issues as a result. In May 2001 Mrs. Sellers consulted Dr. Burrowes, who specialized in gastric bypass surgery, and on January 18, 2002, he performed the procedure on her. After surgery, Mrs. Sellers was fitted with intermittent compression devices on her calves to push her blood along and reduce her risk of developing blood clots. The compression devices were removed the next day when she was able to get out of bed to use the restroom. Contrary to expectation, Mrs. Sellers was not discharged within a day or two because she was nauseated and short of breath. She remained hospitalized for a week while Burrowes and consulting doctors ran tests and tried different medications to diagnose and relieve these problems.
On January 24, 2002, Mrs. Sellers’ heart stopped as she tried to sit up in bed, apparently due to a blood clot that had broken off and lodged in her lung. She was resuscitated and placed on a respirator in intensive care, where she had one-on-one nursing and was being treated by an “intensivist” physician, Dr. Anthony Kimani, who managed her medications, as well as by Dr. Burrowes, who remained the attending physician. Intensivists care for the sickest patients in the hospital, and could be compared to primary care doctors for patient in ICU. Kimani stabilized Mrs. Sellers’ blood pressure, heart rate, and breathing, sedating her so her brain’s breathing center would not fight the respirator. She was completely comatose after the cardiac arrest, but within a few days she showed signs of improvement and was responding to stimuli around her. Dr. Kimani testified that he never observed signs that would have led him to think Mrs. Sellers needed restraints, the use of which had been recently discouraged by the Joint Commission on Hospital Accreditation.
