CVN screenshot of plaintiff attorney Nick Rowley delivering his opening statement
UPDATE: The parties announced in court they reached a settlement Wednesday afternoon.
Des Moines, IA - An Iowa state court jury heard opening statements Tuesday in a medical malpractice lawsuit blaming an elderly woman’s death following hernia surgery on her surgeon’s supposed failure to provide proper follow-up care and hospital staff’s alleged reliance on an invalid “do not resuscitate” order, and the full trial is being webcast gavel-to-gavel by Courtroom View Network.
The family of Donna Burton sued Iowa Methodist Medical Center, her surgeon and an emergency room physician after her death at the age of 79 following routine hernia repair surgery in the fall of 2020. The family accuses Dr. Qasim Chaudhry, who performed the operation, of not coming to the emergency room for an in-person evaluation when she returned to the hospital six days later with complications. Burton’s relatives also claim hospital staff allowed her to choke to death after aspirating due to a DNR order that her attorney Nick Rowley of Trial Lawyers for Justice said didn’t meet key legal requirements.
Rowley and co-counsel Courtney Rowley asked the Polk County jury to award up to $75 million in damages, but attorneys for the hospital and surgeon maintain they properly diagnosed and treated Burton’s post-operative complications, and that her healthcare providers were legally bound by a DNR order they argue was valid and prevented them from either intubating her or performing CPR after she aspirated.
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Rowley explained to jurors how Burton called 911 after a fall at home six days after her outpatient surgery repair. He argued her lack of any bowel movements since the operation suggested a possibly life-threatening bowel obstruction, which he said should have prompted an immediate in-person surgical consultation once she arrived in the emergency department.
Dr. Jacob Wolf, who examined Burton in the ER, had a brief telephone call with Dr. Chaudhry, but Chaudhry didn’t come to the ER despite being in the hospital and suggested Burton be discharged or admitted to a non-surgical ward for treatment of a condition called an ileus, which involves a slowing of bowel activity.
Rowley argued an in-person evaluation by a surgeon would have resulted in additional imaging like a CT scan, which said would have revealed the hernia was not fully repaired and was causing Burton to throw up vomit tainted with feces - a serious complication that Rowley said required immediate surgery.
“All it would have taken him was an elevator ride,” Rowley lamented, telling jurors Chaudhry previously testified in a deposition he was out of town when he received the call from the ER, a discrepancy defense counsel attributed to Chaudhry’s busy travel schedule as a transplant surgeon.
Rowley suggested that once admitted hospital staff began overloading Burton with fluids, which he said only worsened her already severe pain and increased her risk of vomiting and aspiration.
During this time Burton allegedly had a conversation with a nurse and told her she was “ready to meet the Lord” which the nurse relayed to Dr. Wolf via text message as evidence of an end-of-life directive. Dr. Wolf then updated Burton’s DNR code status, and when Burton aspirated and began choking a short time later staff did not provide suction, intubation, or CPR support according to Rowley.
“They sat and they watched her die,” he stated repeatedly during his opening, arguing that treating physicians have to actually see and speak to a patient before changing a DNR status, especially when a patient is supposedly requesting a drastic change after being listed as a “full code” (requiring full resuscitation efforts) during her surgery less than week prior.
Rowley maintained that without any paperwork, no in-person physician evaluation and no analysis of Burton’s state of mind at the time that a DNR order relayed by text is not enforceable, and that even under legitimate DNR orders a prohibition on life-saving measures doesn’t kick in until a patient actually goes into cardiac arrest.
“The DNR is junk,” Rowley insisted. “It’s not valid.”
He accused Burton of being subjected to an agonizing and unnecessary death and told jurors he would seek up to $75 million at the conclusion of the two-week trial.
Representing Dr. Wolf and Iowa Methodist, defense attorney LaMar Jost of Wheeler Trigg O’Donnell LLP pushed back strongly on the claim the DNR order was invalid, arguing that in Iowa an end-of-life directive can be relayed verbally and that Burton died from a “sudden, unpredicted and unpreventable aspiration of vomit.”
CVN screenshot of defense attorney LaMar Jost delivering his opening statement
Jost insisted Burton “clearly and unambiguously” expressed her desire not be intubated to her healthcare providers, and that once she aspirated that specific (and he agued forbidden) procedure was the only possible way to save her life.
Jost rejected the argument a DNR only becomes effective once the heart stops beating, noting that resuscitative procedures like CPR and intubation frequently begin before a patient flatlines on the EKG.
“If you only started resuscitation when someone’s dead, when their heart stops beating, you wouldn’t resuscitate many people,” he stated.
Jost also argued Wolf correctly diagnosed an ileus in the ER, and that Burton’s autopsy results confirm she died of aspiration and not from a bowl obstruction or related complications.
Representing Dr. Chaudhry, defense attorney Jennifer Rinden of Shuttleworth & Ingersoll insisted any claims he failed to meet his obligations to Burton were “without merit” and that treatment of an ileus does not require an emergency in-person consultation from a surgeon.
“Ileus us not a surgical problem,” she insisted, arguing Burton was under the care of a competent team of emergency department providers from the moment she arrived at the hospital.
CVN screenshot of defense attorney Jennifer Rinden delivering her opening statement
Rinden characterized the call from Dr. Wolf to Dr. Chaudhry as a courtesy call and not a formal consultation, which she said met the standard of care given that Burton did not exhibit symptoms classically associated with a bowel obstruction.
She also pushed back aggressively on the discrepancy in Chaudhry’s deposition testimony, noting he had just completed a transplant operation when he received the call from Dr. Wolf, and the error in his recollection was the result of frequent last-minute travel all over Iowa in his capacity as head of the state’s transplant program. Rinden said Burton’s attorneys were immediately informed after Chaudhry realized his mistake.
“Don’t be fooled by the suggestion that this is something they uncovered or weren’t told about,” she urged the jury.
The trial is taking place before Judge Jeffrey Farrell and will take roughly two weeks to complete. CVN’s gavel-to-gavel coverage will continue for the duration of the proceedings.
The case is captioned Sherry Persinger, et al. v. Unity Point Clinics, et al,. case number LACL153999 in Polk County District Court.
E-mail David Siegel at dsiegel@cvn.com
