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Home >  News >  January, 2011

Jury Awards $1.38 Million for Gastric Banding Death

Finds surgeon, patient equally at fault for post-op fatality.

Published: January 24, 2011

An Arizona jury awarded $1,375,000 to the husband of a patient who suffered fatal complications after bariatric surgery even though jurors decided the couple was as responsible for the outcome as the surgeon.

Barbara Diane McDaniel, 55, had previously undergone a Nissen fundoplication procedure to treat gastroesophageal reflux disease and hiatus hernia when she sought out Terry L. Simpson, MD, of Phoenix, for gastric banding surgery in 2007, according to court records.

Dr. Simpson performed the surgery at the Arizona Bariatric Center and Surgical Specialty Hospital of Arizona on June 6. After the surgery, Ms. McDaniel reported suffering from breathing difficulties and fever. Still, she was discharged home, a distance of more than 100 miles from the center.

Three days later, she collapsed at home and died as a result of post-op sepsis. Her husband, Ronnie O. McDaniel, filed a wrongful death and loss of consortium lawsuit against Dr. Simpson, his practice and the facility in Maricopa County Superior Court.

Dr. Simpson's failure to revise Ms. McDaniel's Nissen fundoplication before surgery resulted in the perforation of her liver and esophagus, alleged Mr. McDaniel, and his failure to recognize her post-op complaints resulted in the fatal sepsis.

At trial, the defendants denied negligence. They'd presented the McDaniels with alternatives to the procedure that was undertaken, they said, and explained the possible risks of the surgery. What's more, they argued, the McDaniels should have immediately pursued emergency medical treatment.

On May 7, 2010, the jury sided with Mr. McDaniel, awarding him $2.5 million in damages, but reduced that amount on account of their assessment that Dr. Simpson and the McDaniels were both 45% negligent in what had occurred. The surgical facility was 10% negligent, the jury found.

UPDATE: "The issue was aftercare," notes Arthur E. Lloyd, one of the attorneys who represented the McDaniels' case. Dr. Simpson failed to express to Mr. McDaniel the seriousness of the situation during a telephone conversation the day after surgery, he says. Additionally, unreturned phone messages the McDaniels later placed to Dr. Simpson's office and the surgery center's single attempt to call the McDaniels at home without leaving a message hindered communication. "The question was whether or not there was follow-up, and the degree of quality of the follow-up," says Mr. Lloyd.

Attorneys for the defendants did not immediately return requests for comment.

David Bernard

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