Unnecessary Liver Transplant
Filed under: Surgical Errors
The Buchanan Case
In this case, which was ultimately consolidated with the Culver cases, we represented Robert and Patricia Buchanan in their lawsuit against a Hospital and surgeon based on an unnecessary live liver transplant. Robert was the donor of this liver transplant and his brother was the recipient.
The Background:
As we investigated this case, we discovered that although the Defendant Hospital once dominated the lucrative business of liver transplants, as the procedure grew more common, competition from other hospitals eroded its monopoly. In an aggressive bid to reclaim its leadership, the Hospital hired an Argentinean surgeon who promised to drastically increase the number of live liver transplants that the Hospital performed. As a result, the Hospital offered this surgeon a $500,000 yearly salary plus “additional incentive payments”.
Although living donor operations in the United States had been declining since 2001, the living donor operations surged at the Hospital under the leadership of this surgeon. The Hospital transplant program is a source of both profits and prestige that the Hospital leverages to attract star doctors and build its other businesses, which include a health-insurance arm. Hospitals charge $400,000 to $500,000 for a liver transplant. The Hospital’s transplant program produced $130 million of revenue in the latest fiscal year related to this lawsuit.
It was also discovered that although this surgeon delivered on his pledge, in doing so, he resorted to practices that his colleagues found questionable. The Defendant Hospital adopted new guidelines for potential surgical candidates of its live liver donor transplant program that were far more aggressive than those previously used by the Hospital or any other transplant program in the country. It was also discovered that the Hospital transplant team would urge family members to donate livers to relatives. Further, the surgeon had been criticized by former Hospital doctors for unnecessary deaths and complications due to his aggressive liver transplant practices. According to multiple credible sources, the Hospital’s former head surgeon and longtime former director of that program started to become aware of high significant complication rates associated with the Hospital’s live liver donor transplants; however, the Hospital blocked dissemination of this doctor’s findings.
Furthermore, a published study by the European Journal of Hepatology showed a high rate of serious complications in live-donor liver transplants at the Defendant Hospital versus liver transplants taken from cadavers (the Defendant surgeon performed all the surgeries cited in the study). A liver transplant surgeon at the Baylor Regional Transplant Institute in Dallas and past president of the American Society of Transplant Surgeons was quoted as saying, “I think the study’s authors are addressing a local problem in Pittsburgh that everybody knows about, but they also are bringing out the whole issue that we need to be careful and not just charge ahead and let cowboys do this procedure.”
Shortly before the filing of these lawsuits, the Hospital finally asked the surgeon to resign. Since the surgeon left, the number of living donor liver transplants has plummeted. 4 live-donor liver transplants were done at the Hospital the following year - down from a record high of 36 each in the previous two years.
The Facts:
Dennis Buchanan, Robert’s brother, was 58-years old, in end-stage liver disease due to hepatitis C and cirrhosis, and was found to have primary liver cancer. Dennis’ oncologist advised him that he was not a liver transplant candidate because he had multifocal disease with four tumors in his liver, the largest measuring 3.6 cm x 4.6 cm with vascular invasion and encasing the right hepatic artery (basically, Dennis was long past the point where a new liver would help in any way). Dennis underwent chemoembolization therapy and was told that he would likely have a 1-5 year life expectancy.
The oncologist subsequently told Robert that he had a conversation with the Defendant surgeon and that the Defendant surgeon said that he would still perform a liver transplant surgery on Dennis. As a result, Dennis was then placed on the liver transplant waiting list.
Shortly thereafter, the Defendant surgeon and the Defendant Hospital transplant team advised Robert that by donating his liver to Dennis, Dennis’s life expectancy would be drastically increased. After being lead to believe that this was true, Robert underwent 3 days of screening at the Hospital to determine if he was a suitable liver donor for Dennis; The Defendants told Robert that he was a suitable liver donor and that they could do the surgery. Further, the Defendants told Robert that the transplant surgery should not be performed on patients older than age 55 and since Robert would be turning 56 within a few months, the transplant surgery had to be done quickly.
On February 1, Robert underwent a right liver lobectomy, performed by the Defendant surgeon, and this portion of his liver was transplanted into Dennis the same day.
Dennis died approximately one-year later on March 15 from liver cancer (much shorter than is original 1-5 year life expectancy).
Despite the exercise of reasonable diligence, Robert did not know that his brother was not a suitable transplant recipient or that the proposed transplant surgery was not appropriate under the circumstances until November 21, 2008 when the article appeared in The Wall Street Journal which contained the background information as discussed above.
Damages as to Robert Buchanan
Robert underwent a period of severe illness, weight loss, and depression following the pointless transplant. Robert lost more than 30 pounds, was required to take anti-depressants, and was diagnosed with a 20 cm abscess on his liver. He has twice been hospitalized for the abscesses. Robert was employed by as a Route Salesman for 30-years but “retired” early shortly after this surgery due to his transplant related health issues. However, the true essence of Robert’s claim was the emotional upheaval he has endured knowing that his transplant surgery was performed by the Defendants strictly for financial gain.
The Lawsuit
Following the filing of this lawsuit and Interrogatories on behalf of the Plaintiff, the case was transferred to a Judge that handles all civil cases that are designated “complex” in their nature. Thereafter, this litigation consisted of numerous court appearances initiated by our firm to compel discovery. What we were seeking were essentially the documents necessary to establish the facts set forth in The Wall Street Journal article referred to above. The Defendants resisted nearly all requested discovery. Ultimately, the Judge granted virtually all of the Plaintiffs’ Requests to Compel, despite numerous motions by the Defendants to consider and reconsider unique bases to justify their refusal to produce anything.
Additionally, we sought Court approval to take the deposition of the Defendant’s former head the transplant program (an internationally renowned pioneer in transplant surgeries). This was important as this surgeon was very critical of the direction that the Defendant Hospital’s transplant program had taken under the directorship of the Defendant surgeon; and he sought to publish research that he did on the Defendant Hospital’s live liver transplant program in The New England Journal of Medicine. When the Defendant Hospital learned of this, it attempted to block this publication. Tension between the Defendant Hospital and its former head surgeon reached a point where the surgeon was not even permitted access to the Defendant Hospital Transplant building named for him. Over the Defendant Hospital’s objections in this case, the Judge granted our Motion to take the surgeon’s deposition. The Defendant Hospital appealed this decision to the Pennsylvania Superior Court. We then filed a Motion to Quash this Appeal as premature and frivolous which was granted by the Superior Court.
Thereafter, in response to our discovery requests, the Defendant Hospital filed a “Privilege Log” pursuant to the Judge’s Order. The Privilege Log purported to set forth why numerous documents authored by high ranking Hospital officials, including its CEO, were not discoverable by reason of Pennsylvania’s Peer Review Protection Act, even though the Judge already preliminarily indicated from the Bench that by his interpretation of the Peer Review Act, the Hospital’s reliance on The Act to thwart discovery in this case was misplaced. The Judge ultimately appointed a “Special Master” to preside over the discovery disputes; however, shortly thereafter, the case resolved for a substantial amount.