Battle Lines Drawn in Day 1

Opening statements were delivered Monday in Crewcut Charlie Weis' malpractice lawsuit against Charles Ferguson, director of Massachusetts General's surgical residency program, and Richard Hodin, a surgeon and professor at Harvard Medical School.

Weis attorney Michael Mone, above right, said the doctors acted negligently by allowing Weis to bleed internally for 30 hours after the June 2002 gastric bypass surgery before performing a second operation to correct the complication. Weis was in a coma for two weeks and nearly died.

Mone said Weis still suffers pain in this feet, requiring the coach to sometimes use a motorized cart.

William Dailey, representing Ferguson and Hodin, said that internal bleeding was a known complication of gastric bypass surgery and that there was concern that Weis could develop a pulmonary embolism, a potentially fatal condition, and did not want to perform a second surgery with that possibility looming.

Dailey also noted that Weis, who weighed around 350 pounds before the surgery, lost about 100 pounds in the following year and landed one of the premier coaching jobs in the country at Notre Dame after serving as an assistant with the New England Patriots.
Also taking the stand were Maura Weis, left, the coach's wife, and Jennifer Wilson, Weis' nurse while the coach was in intensive care. Weis is expected to take the stand Tuesday.

We'd also like to point readers to two other items of interest. First is an interview of John Romanelli, a 1991 Notre Dame graduate and a 1995 graduate of the Medical College of Pennsylvania. He is a general surgeon of six years who did a fellowship in laparoscopic surgery and he specializes in bariatric (weight loss) surgery. That interview appears on the site Blue and Gold.

Second is a short radio interview of David Frank of Lawyers Weekly USA with Mark Katic of WBZ in Boston. That interview can be accessed by clicking here.
Now to another member of our coverage team. We once again welcome Gary Gaffney, M.D., University of Iowa Hospitals and Clinics. He is currently Associate Professor of Child and Adolescent Psychiatry at the Iowa College of Medicine, and also runs Steroid Nation, a weblog looking at the use of anabolic steroids (and performance enhancing drugs) in sports, youth and society. We turn it over to Gary:

"Coach Weis and his legal team claim that complications in the post-surgical course included significant inter-abdominal bleeding, which was not diagnosed in a timely fashion. That diagnostic delay led to a revision surgery, which resulted in the complications.

"The surgeons counter that Weis suffered from a well-known complication of gastric-bypass surgery, and that he entered into the procedure with informed consent, thus accepting the possibility of surgical complications.

"Looking at medical malpractice, or professional negligence, four elements must be proved:

—The doctors owed a duty to care for the patient in a manner compatible with standard medical care.
—That duty was breached; in other words, the doctors did not meet local standards of care.
—The breach resulted in medical injury directly (proximately) caused by the alleged negligence.
—Damage was suffered, either medically or psychologically.

"To win, the Weis team should lay out this logic:

—Although Weis agreed to the procedure with known risks, mistakes were made during the surgery and in the post-surgical period that resulted in internal hemorrhage. The surgeons mistakes clearly represented a substandard practice of medicine.
—Those mistakes, or poor judgments, resulted in bypass revision surgery, coma, near death, pain, suffering, and permanent disability.
—Thus Weis is owned compensation for his pain, suffering, and continued disability.

"The defense should counter with:

—The surgeons provided excellent medical care, in line with (high) local standards.
—While Weis suffered from post-surgical complications, those complications are not unexpected from such a high-risk procedure, a procedure Weis entered into fully aware of the potential for bad outcomes.
—Although the surgical team and hospital empathize with Weis, there was no failure of professional duty. High-risk surgeries like gastric bypass carry the possibility of severe complications, including death.

"While testimony in the first trial established that Weis suffered complications, there did not appear to be an event that directly pointed to professional negligence. A critical piece of evidence would be the medical record that should document the physician's reasoning. If experts could establish that the surgeons carried out faulty procedures or made heinous errors in judgment, then the Weis team might prevail.

"On the other hand, as indicated by Tom Kirkendall, jury trials such as this sometimes hinge on the persuasiveness of lawyers, the fame of litigants, the reputation of the hospital, or other qualitative extraneous factors.

"This case may hinge on jury selection. Did the lawyers agree on intelligent, reflective jurors who will consider evidence presented in court? Or did the attorneys select jurors who might be swayed (positively or negatively) by the reputation of the Harvard medical establishment or the star power of a high-profile football coach and the sports heroes he can enlist in testimony?"

Previous coverage:
Preview: A legal perspective
The mistrial: A look back at our coverage of the first trial.