Vivian Gagliano went into Danbury Hospital for what was supposed to be a routine hernia operation — an outpatient procedure. But the operation went wrong, and she spent 34 days in the intensive care unit, a total of 70 days in the hospital, had six more surgeries and amassed $1 million in medical bills.
She sued for medical malpractice, and a Danbury Superior Court jury recently awarded her $12 million, the largest personal injury verdict ever in the Danbury Judicial District, according to the plaintiffs lawyers.
“She was left with a bowel and intestines that do not function properly,” said Sean McElligott, of Koskoff, Koskoff & Bieder in Bridgeport. “She has recurrent abdominal infections. She can’t live a normal life.”
The verdict was the second big financial blow to Danbury Hospital in a little more than a year. In April 2013, a jury awarded $6.5 million to the estate of a man who died after the hospital’s medical staff raised his sodium levels too quickly.
Without divulging details, McElligott said there are more malpractice cases in the pipeline against Danbury Hospital. “It’s hard to tell if they’re worse than any other [hospital], but we seem to be involved with a lot of stuff there,” said McElligott, whose firm handles many high-profile medical malpractice cases.
In the latest case, Danbury Hospital was defended by Michael Neubert, of Neubert, Pepe & Monteith in New Haven. A resident physician involved in the surgery, Venkata Bodavula, was defended by Christopher DiGiacinto, of Kaufman, Borgeest & Ryan in Westchester, N.Y. Neither Neubert nor DiGiacinto responded to interview requests for this article.
On July 23, 2008, Gagliano, 62, of Redding, went in for her operation. According to McElligott, her doctor, Joseph Gordon, had performed roughly 200 laparoscopic hernia surgeries with no problems.
McElligott said Gagliano was sedated and brought into the operating room. Unbeknownst to her, Danbury Hospital assigned a resident physician, Bodavula, to assist Gordon. McElligott said even Gordon had been unaware that Bodavula would be assisting until that morning. Typically, such assignments are made the night before.
During the operation, Gordon asked the resident if he had ever used a bladeless optical trocar before. The screwdriver-shaped device, commonly used in hernia operations, is inserted into a small surgical opening and allows the surgeon to separate body tissue. Bodavula said he had used one before and Gordon took him at his word.
“So based on his assurances, [Dr. Gordon] hands him this device and the resident starts to try to use it and it becomes quite apparent right away he doesn’t know what he’s doing,” said McElligott.
Gordon quickly took over, but the damage had been done — though Gordon didn’t know that right away. He looked for any perforations of the intestine, didn’t see anything wrong and concluded the surgery.
However, McElligott said, 36 hours later it became apparent her colon had been cut. By then, Gagliano had a raging infection, sepsis was setting in and she required emergency surgery. During that surgery, doctors discovered that her abdomen had filled with fecal matter. “She had a 50 percent chance of survival at that point,” said McElligott.
Gagliano did survive, but did not completely recover. She now uses a scooter to get around. “She sits in a chair all day and can’t do much of anything,” said McElligott. “Her husband has been turned into her nurse essentially.”
Gagliano can only eat foods that can be easily digested. “She has all these problems digesting and processing food. Once you have this type of infection in the abdominal cavity, for some reason you can never really get rid of it,” said McElligott.
The Gaglianos sued Gordon, Danbury Hospital and the resident, Bodavula. Gordon settled his case; the terms are confidential.
“It was unusual in a malpractice case for a doctor to take responsibility pretty early,” said McElligott. “Dr. Gordon came to us and said, ‘I made a mistake and shouldn’t have let the resident use this device.’ Dr. Gordon also noted that the resident misrepresented his experience.”
But the hospital and Bodavula contested liability and went to trial, and both tried to pin the blame on Gordon. They argued that a resident can’t commit malpractice, as the attending doctor should always take over if something goes wrong.
“The defense argument was a resident can’t be responsible for anything that happens during the surgery. Anything that happens is basically as if the attending [physician] did it with his own hands,” said McElligott.
McElligott said in this instance, that wasn’t true. He said when inserting the bladeless optical trocar into the body, “it takes a light touch. Once you push too hard the damage is already done. It wasn’t the type of case where an attending [physician] can swoop in. You have to have a good technique from the beginning.”
Hospital officials claimed that even if the resident was liable, they were not responsible for him because he was a “joint resident” who also worked at Sound Shore Medical Center in New York. Joint residents typically spend three months at a time at each facility. “It was an interesting position to take since he was practicing at [Danbury Hospital],” said McElligott.
Key evidence came from the manual that instructed Danbury Hospital residents in everything from what they should wear to how how much time they can spend on the Internet. The manual helped McElligott and co-counsel Joshua Koskoff persuade the jury that the resident was an “agent” of Danbury Hospital and hospital officials had control over his actions. “The reason agency was important was because Bodavula had a $1 million insurance policy,” said McElligott. “So for the remaining verdict to be collectible, we had to find Bodavula was an agent of the hospital.”
Danbury Superior Court Judge Sheila Ozalis presided over the three-week trial. Gagliano’s husband, Phil, and two children testified. They spoke about what the wife and mother went through during the 70-day hospital stay.
“The family held a vigil in the hospital and were aware of every twist and turn in the hospital,” said McElligott. “There was some really touching testimony from her two daughters and from Phil.”
The jury deliberated for more than three hours before awarding $12,002,935. McElligott said the jury assessed 80 percent of the liability to Danbury Hospital and Bodavula, which comes to about $9.6 million. The remaining 20 percent was assessed to Gordon, who had already settled. Included in the verdict is $1.5 million for loss of consortium for Phil Gagliano, the husband.•