Defense Verdict in Lung Removal Malpractice Trial

Posted by msch on Mar 3, 2011 12:56:00 PM

Judge Dwight GeigerJohansen v. Vuocolo (Fort Pierce, Florida).

In his opening statement for the plaintiff, Probinsky and Associates' Brent Probinsky briefly summed up the life of Yvette Johansen and her husband, George Johansen. He informed the jury that Mr. Johansen was a patient of the Heart and Family Health Institute, and had been for many years. His doctor there, Phillip Vuocolo, told the Johansens that Mr. Johansen had lung cancer. Dr. Vuocolo also told the Johansens that the lung had to be removed. Mr. Johansen died a month after Dr. Vuocolo conducted the surgery. During the surgery, Dr. Vuocolo was informed that Mr. Johansen did not have cancer, yet continued to remove the lung.  Mr. Probinsky argued that a biopsy and other tests should have been completed before the surgery was performed. Morover, he argued that because Dr. Vuocolo was not board certified as a thoracic surgeon and less than 10% of his surgeries were lung surgeries, he should never have performed the surgery on Mr. Johansen.

In his opening statement for the defense, Wicker Smith's Adam Rhys argued that Mr. Johansen was informed as to the risks and benefits of the surgery and that it was a reasonable choice. He stated that Dr. Vuocolo was an experienced surgeon in general, vascular and thoracic surgery. Further, he claimed that Dr. Vuocolo had done a thousand thoracic surgeries, with positive outcomes. CAT and PET scans were performed prior to the lung removal surgery on Mr. Johansen, which confirmed a high likelihood of cancer. A biopsy had its own risks, and Mr. Johansen could reasonably have refused it. Mr. Rhys concluded that Dr. Vuocolo's actions were within the standard of care and reiterated that Mr. Johansen was informed of the risks.

In his closing statement, Probinsky reiterated that Mr. Johansen did not have lung cancer. He further stated that a major issue in the case was the fact that Mr. Johansen was never offered a needle biopsy, which had a 1-2% chance of death as compared to his surgery which had a 25-50% risk. Another main issue, Probinsky argued, was the fact that Mr. Johansen died from the surgery itself. Moreover, Mr. Johansen was not fully informed of all the risks and treatment options. Mr. Probinsky also emphasized his argument that Dr, Vuocolo was too inexperienced to treat Mr. Johansen, and that he did not satisfy the standard of care in the course of this treatment.

In his closing statement, Mr. Rhys reiterated that Mr. Johansen was fully informed of the risks and benefits of the surgery. He recounted testimony from his expert witness that neither a needle biopsy or bronchoscopy would have been effective for Mr. Johansen. Furthermore, he defended Dr. Vuocolo's choice of treatment by producing evidence that other surgeons agreed with this treatment. Mr. Rhys argued that cancer was a reasonable diagnosis. Mr. Rhys concluded by arguing that Mr. Johansen was presented with options, and made a reasonable choice when deciding to go through with the surgery.

The jury found in favor of the defense, concluding that there was no negligence on behalf of Dr. Vuocolo in treating or obtaining informed consent that was a legal cause of the plaintiff's damages.

Topics: Negligence, Medical Malpractice