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Mercker v. Abend

The trial court did not err in charging the jury on hindsight where the evidence raised an issue of whether or not the plaintiff based her claims on later acquired knowledge or on information known by or reasonably available to the defendant at the time of plaintiff's laparoscopic gallbladder surgery.

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Dr. Melvin Abend performed laparoscopic surgery on Suzanne Estee Mercker to remove her gallbladder in treatment for gallstones. Because of persistent bile leakage thereafter, Mercker underwent multiple repair surgeries. She filed a medical malpractice suit against Abend and his professional corporation, Melvin N. Abend, M.D., P.C., alleging they were liable for permanent damage to her biliary system. A jury found in favor of the defendants. Mercker appeals, contending that the trial court erred in charging the jury. Because Mercker has demonstrated no reversible error, we affirm. Abend performed a laparoscopic cholecystectomy on Mercker on August 4, 1998. While placing a clip on and cutting Mercker’s cystic duct as required by the procedure, Abend unintentionally perforated the duct. Because bile began to leak from the hole, Abend realized what he had done and repaired the perforation before concluding the surgery. He left a bile drainage tube in the clipped area of the cystic duct. Abend testified that he did so “not because of the perforation of the cystic duct per se,” but “as part of the overall assessment,” which included a coarse, thickened gallbladder, the difficulty of the dissection, and abdominal adhesions. Before discharging Mercker from the hospital on August 5, Abend assured her that the tube was there because there might be some leakage, but that it would heal within a few days.

But on August 11, Mercker reported to Abend that bile continued to leak. Tests performed the next day revealed blockage of the bile duct, but not the source of the leakage. On August 13, Abend performed open repair surgery and discovered that during the cholecystectomy, he had erroneously placed a clip on the common bile duct, cut the common hepatic duct, and cut an accessory duct. According to Abend, he corrected those errors during the repair surgery.

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