Opinion

Drenner v. United States

Court: District Court, N.D. Oklahoma
Filed: Nov 17, 2021
Cited by: 0 cases
Authority: More cited than 31.8%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

ERIC DRENNER, )

)

Plaintiff, )

)

v. )

)

UNITED STATES OF AMERICA, ) Case No. 15-CV-337-TCK-CDL

)

Defendants, )

OPINION AND ORDER

The plaintiff, Eric Drenner (“Mr. Drenner”) filed this action pursuant to the Federal Tort

Claims Act (“FTCA”), 28 U.S.C. §2671, et seq., and 28 U.S.C. §1346(b)(1). Mr. Drenner seeks

damages for alleged medical malpractice arising from the care and treatment he received at the

Claremore Indian Hospital (“CIH”) from December 6, 2012 to December 12, 2012.

The parties agree that Mr. Drenner has complied with the administrative requirements of

the FTCA. (Doc. 128), Pretrial Order, III. C. He filed an administrative claim under FTCA on

November 1, 2014. Id. The Department of Health and Human Services (“DHHS”) did not approve

or deny the claim within six months from the date the claim was filed. Id.1 Mr. Drenner timely

filed his Complaint on June 6, 2015, after fully exhausting his administrative remedies. (Doc. 2).

On September 16, 2020, the parties filed a motion seeking permission to submit all

evidence to the Court without live testimony. (Doc. 101). The Court granted the motion. (Docs.

103-104). The parties have submitted the video depositions of David Dreyfuss, M.D., June Femi-

Pearce, M.D., Nathan Powell, D.O., Richard Hastings, D.O., Lon Huff, CRC, Will Clark, PhD.,

1 DHHS denied Plaintiff’s claim on June 24, 2015. Id.

Mr. Drenner, Glenee Grant, Jody Murphy, Chris James, Christy Wilson-Adkins, Donna O’Neil,

Russell Green, M.D., and Khashayar Vaziri, M.D.

The Court has also received and admitted into evidence Plaintiff’s Exhibits 1-3, 5, 7-9, 14,

17, 18, 20, 22-23, 25, 37-38, 40, 43, 46, 53, 60, 62, 64-65, 69 7-72, 78-80, 82-83, 85-100, and

Defendant’s Exhibits 1-62.

Pursuant to Fed. R. Civ. P. 52(a)(1), the Court makes the following findings of fact and

states the following conclusions of law.

I. Findings of Fact

Medical Negligence Evidence

December 6, 2012 Emergency Room (ER) and Pre-Operative Evaluation

1. Mr. Drenner first presented to the emergency room at CIH on December 6, 2012 at 01:33

with a chief complaint of right sided abdominal pain. Before December 6, 2012, Mr. Drenner had

a history of abdominal pain for several years; had been diagnosed with Crohn’s Disease or some

type of an “inflammatory bowel disease” in approximately 2005; and had a history of kidney

stones. (Pl. Ex. 92). Mr. Drenner left the ER at approximately 03:10. (DX 1). Mr. Drenner testified

that he left the ER because he had to take his children to school. (PX 922, p. 19, ll. 4-19). Mr.

Drenner returned to the ER where he was examined by Dr. Femi-Pearse who diagnosed Mr.

Drenner with acute appendicitis and a history of Crohn’s disease. (PX 1.0005). Crohn’s disease is

an autoimmune disease generally involving the small intestine but can also involve the colon and

rectum. (PX 9632 , p. 19, ll. 3-6).

2 PX 92 is the deposition transcript of Eric Drenner.

3 PX 96 is the deposition transcript of Dr. David Dreyfuss, Plaintiff’s general surgery expert.

2. A CT Scan showed significant progressive inflammatory change involving the pericecal

and terminal ileal region when compared to a previous CT Scan done January 31, 2011. (PX 2).

Dr. Femi-Pearse recommended a laparoscopic appendectomy and abscess drainage. (PX 1.0006;

PX 96, p. 22, ll. 20-22). Dr. Femi-Pearse indicated that he might have to do an open appendectomy

and a possible ileocolectomy. (PX 1.0006). An ileocolectomy involves removal of part of the ileum

(small intestine) and colon. (PX 96, p. 24, ll. 11-15).

Appendix Removal

3. (PX 72) is a publication from the Society of American Gastrointestinal and Endoscopic

Surgeons (SAGES). SAGES is an organization of surgeons who perform gastrointestinal and

endoscopic surgery and is a reliable source of information with respect to appendectomies. (PX

96, p. 11, ll. 5-20). The defense expert Dr. Vaziri is a member of SAGES. (DX 594, p. 6, ll. 23-

24).

4. An open appendectomy involves making one incision below and to the right of the belly

button and a laparoscopic appendectomy involves making three small incisions. (PX 96, p. 8, ll.

80-20; PX 72.0001). In a laparoscopic appendectomy, the surgeon inserts a camera through a port

so that the surgeon can see the abdomen on a screen in the operating room. Two other ports are

made through which the surgeon inserts the instruments needed to do the surgery. (PX 96, p. 12,

ll. 1-25, p. 13, ll. 1-5; PX 72.0002). The surgeon finds and grasps the appendix and either puts ties

or staples around it and then disconnects the appendix and removes it. The part of the large intestine

or colon to which the appendix is attached is called the cecum. (PX 96, p. 13, ll. 13-24; p. 14, ll.

1-20; PX 72.0002).

4 DX 59 is the deposition transcript of Dr. Vaziri.

Dr. Femi-Pearse’s December 6, 2012 Surgery

5. Dr. Femi-Pearse encountered phlegmon immediately upon entering Mr. Drenner’s

abdomen. (PX 3.0002). Phlegmon is an inflammation response to severe sepsis, where the

structures in the vicinity of the problem area congregate and clump together to try to seal off the

problem area. (PX 8055 , p. 22, ll. 1-7). PX 17 is a series of photographs taken by Dr. Femi-Pearse

during his surgery.6 Dr. Femi-Pearse identified the phlegmon on PX 17.0002.

6. Dr. Femi-Pearse cut into the phlegmon and noted that it “was difficult to tell which was

the cecum.” (PX 3.0002). He kept dissecting until he saw what he thought was the cecum. He saw

a structure emanating from the base of the cecum that he thought resembled the appendix. (PX

3.0002). Dr. Femi-Pearse identified the structure he thought was the appendix on PX 17.0001. (PX

80, p. 44, ll. 6-11, ll. 21-24).

7. Dr. Femi-Pearse isolated that structure, dissected it out and transected it with the

endoscopic stapler and sent it to pathology. (PX3.0002). Dr. Femi-Pearse said in his Operative

Report: “It was difficult to determine what was the appendix. I am not even sure if I was able to

locate the appendix; however, necrotic tissue that resembled the appendix was excised and has

been sent to pathology for confirmation.” (PX 3.0001).

8. The Pathology Report does not identify any of the specimens as an appendix. The

Pathology Report states that on the largest fragment, there is a 4.8 cm linear line of staples and that

the cutefragment may represent a portion of bowel wall. (PX 7).

5 PX 80 is the deposition transcript of Dr. Femi-Pearse.

6 PX 5 is the same as PX 17 but without Dr. Femi-Pearse’s handwriting.

9. Dr. Femi-Pearse saw a structure that was adhered to the right lateral abdominal wall and

took the structure off the abdominal wall. The Operative Report does not identify the structure nor

does it say what Dr. Femi-Pearse did with the structure. (PX 3.0002).

10. Dr. Femi-Pearse drained the abscess, washed out the abdomen and placed two drains,

one in the right gutter and one in the pelvis. Mr. Drenner was extubated in the operating room and

transferred to the recovery room in stable condition. (PX 3.0002).

11. After the surgery, Dr. Femi-Pearse spoke to Glenee Grant, Mr. Drenner’s mother, and

told her that “I cut something out—I don’t know what, but we cut something out.” Dr. Femi-Pearse

then showed Ms. Grant the photos he had taken during the surgery. (PX 937, p. 7, ll. 19- 25; p. 8,

ll. 6-13).

Mr. Drenner’s Post-Operative Recovery December 7-12 at CIH

12. On December 8, 2012, Progress Notes signed by Dr. Femi-Pearse show purulent

drainage from one of the drains he placed. (PX9.0005). Purulent drainage is a sign of infection and

a sign that the patient is getting worse. (PX 96, p. 44, ll. 19-25, p. 45, ll. 1-16). Purulent drainage

could be an early sign that there is a leak or infection in that area. It may also mean there is a small

breakdown in the cecum. (DX 59, p. 21, ll. 15-25 through p. 22, ll. 1-19). The December 9 and 10

Progress Notes show continued draining of purulent liquid. (PX 9.0003; PX 9.0004).

13. The December 11 Progress Notes show continued purulent drainage and the presence

of feculent, stool like matter. The Progress Note also references a possible fecal fistula, another

indication for the presence of stool. There was concern there was a fistula or a larger leak in the

cecum because of the change in the drainage. (PX 9.0002; PX 96, p. 46, ll. 11-25; DX 59, p. 23,

ll. 6- 16).

7 PX 93 is the deposition transcript of Glenee Grant.

14. The December 12 Progress Notes show continued purulent drainage. Dr. Femi-Pearse

recommended a CT Scan. (PX 9.0001). The CT Scan showed inflammation and a small pocket of

air along the lateral tissues which could have indicated a leak. (DX 9, p. 4; DX 59, p. 24, ll. 4-7).

15. Dr. Femi-Pearse then called for an internal medicine consult by Dr. Ira Liebman to get

an opinion on a patient with anasarca. Anasarca is significant body-wide swelling. (PX 988, p. 113,

ll. 24-25 - p. 114, l. 1). Dr. Liebman noted that Mr. Drenner had developed “edema diffusely, fever

and abdominal pain. There was particularly an increase in abdominal girth.” (PX 14.0001). Dr.

Liebman’s impression was sepsis, possibly from an intraabdominal source. Dr. Liebman also

believed that Mr. Drenner was at high risk for the existence of an abdominal leak. (PX 14.0003).

16. Dr. Femi-Pearse decided to transfer Mr. Drenner, noting that Mr. Drenner may have a

bowel leak. (PX 15.0001). Dr. Femi-Pearse noted in the Discharge Summary that Mr. Drenner

spiked a temperature and was noticed to have purulent drainage from both drains. He also noted

that the repeat CT Scan9 showed “new fluid collections that cannot be explained. The possibility

of a bowel leak exists.” (DX 9, p. 2; PX16.0001).

Mr. Drenner’s December 12, 2012 Admission to St. Francis Hospital

17. On admission to St. Francis Hospital on December 12, Mr. Drenner reported that earlier

that day he had a large gush of fluid from the incision surrounding the JP drain. (PX 18.0001).

18. Dr. Nathan Powell examined Mr. Drenner on December 13. Dr. Powell noted Mr.

Drenner came to St. Francis with complaints of severe abdominal pain, nausea, vomiting, and pus

draining from the drains he had in place. Mr. Drenner had a fever of 103.5 Fahrenheit and was

tachycardic. He had generalized tenderness diffusely as well as guarding and peritonitis, which

8 PX 98 is the deposition testimony of Dr. Richard Hastings, Plaintiff’s medical expert.

9 Two CT Scans were done on December 12, one in the morning and one in the afternoon. (DX

9).

signifies infection or inflammatory process that’s not controlled throughout the abdomen. Dr

Powell ordered labs that showed Mr. Drenner’s kidneys were suffering as a result of his

inflammatory or infectious condition. (PX 20.0001; PX 971010, p. 8, ll. 18-25; p. 9, ll. 1-19).

19. Dr. Powell testified that Mr. Drenner needed to have exploratory surgery because Mr.

Drenner was still showing signs of sepsis and peritonitis that were not being controlled despite six

days of antibiotics and drain placement. Dr. Powell considered continuing with antibiotics and

drains but decided to do surgery because Mr. Drenner had continued sepsis evidenced by his high

fever, white blood count, and acute kidney injury. Dr. Powell felt like he did not have control of

the source of Mr. Drenner’s sepsis “as evidenced by the pus that was just pouring out of his

abdominal wounds and he has peritonitis on exam, which again, is widely considered a surgical

emergency…” (PX 97, p. 12, ll. 19-23). Sepsis is a multi-organ immune response to an infectious

condition. (PX 97, p. 9, ll. 20-25, p. 10, ll. 1-10, p. 12, ll. 7-23). Dr. Powell had a strong suspicion

that the pus and continuing infection were caused by a perforation or leak from the first surgery.

(PX 97, p. 13, ll. 2-9).

20. Dr. Powell operated on Mr. Drenner on December 14. Upon entering the abdomen, Dr.

Powell found a large volume of purulent ascites (pus mixed with normal fluid) in all quadrants of

the abdomen, signifying that whatever was causing the pus was uncontrolled and spreading

diffusely to the entire abdomen. (PX 97 11, p. 14, l. 24 – p. 25, l. 8). The bowel was grossly

distended and extremely inflamed in the right lower quadrant. Dr. Powell located the cecum and

immediately encountered an approximately quarter-size perforation at the tip of the cecum

consistent with a recent history of perforated appendix. No appendix was visualized. (PX 22.0002).

10 PX 97 is the deposition transcript of Dr. Nathan Powell.

11 PX 71 is a medical illustration that generally depicts what happened during Dr. Powell’s

December 14, 2012 surgery (PX 97, p. 15, ll. 10-15).

There was also a small perforation at the base of the terminal ileum as it entered the cecum. There

was a large volume contamination of stool within the pelvis and right lower quadrant. (PX

22.0002).

21. The stool came from the hole in the cecum. The purulent ascites was a response to the

stool in the abdomen. (PX 97, p. 18, ll. 8-15). Dr. Powell testified he did nothing to cause or enlarge

the hole in the cecum because the hole was at the bottom of the cecum and he did not dissect there.

Dr. Powell testified that he did not do anything to cause the perforation at the base of the terminal

ileum. (PX 97, p. 18, ll. 16-25, p. 19, ll. 1-17).

22. The bowel was inflamed and thickened and diseased in response to the stool and

infection that was surrounding it. (PX 97, p. 16, ll. 23-25, p. 17, ll. 1-11, p. 18, ll. 1-15).

23. Dr. Powell reviewed the operative report from CIH and learned that it was a difficult

case; that the previous doctor “was able to remove the structure which he thought was the

appendix, but it didn’t sound like he was certain that the appendix had been removed”. Dr. Powell

suspected there was a continuing problem from that area but was not expecting a quarter size hole

in the cecum until he got in there and saw it. (PX 97, p. 20, ll. 8-25, p. 21, l. 1). The stool had been

leaking for a number of days and Dr. Powell thought it would make sense to say it had been leaking

for the six days since the first surgery. (PX 97, p. 22, ll. 12-25)

24. Dr. Powell injured the duodenum during the surgery, recognized the injury and

immediately repaired it. The injury to the duodenum was a foreseeable risk or complication of the

surgery. (PX 97, p. 23, ll. 10-25, p. 24, ll. 1-4).

25. Dr. Powell then performed an ileocecectomy, removing part of the cecum and the ileum

because the tissue was not going to be amenable to repair. Dr. Powell had to find healthier tissue

to fix the holes in the cecum and the terminal ileum. (PX 97, p. 24, ll. 5-18; PX 71, #6). Dr. Powell

then finished the surgery by making a hole in Mr. Drenner’s abdominal wall, bringing the ileum

through the abdominal wall, and reopening it to the outside so that Mr. Drenner would have

intestinal continuity to eat and evacuate stool from the ileum into a bag. Dr. Powell felt like there

was no viable alternative to the ileostomy that would solve Mr. Drenner’s problems. (PX 97, p.

27, ll. 4-20, PX 71, #7).

26. On December 16, 2012, Dr. Powell examined Mr. Drenner and found frank bile from

his drains and was concerned that there was a perforation at the previous repair site. In addition,

Dr. Powell noted continuous purulent drainage from the left lower quadrant abdominal wall

abscess that had previously been packed. Dr. Powell decided to take Mr. Drenner to the operating

room for re-exploration. (PX 25.0001).

27. During that surgery, Dr. Powell reopened the previous incision, removed part of the

right colon, mobilized the duodenum, partially removed the fatty apron called the omentum and

used that to over sew the duodenal perforation. He then put a tube through the abdominal wall into

the stomach to the duodenum, washed out and debrided the left lower quadrant and revised the

ileostomy. (PX 25; PX 96, p. 61, ll. 4-23).

28. On December 19, Mr. Drenner was returned to the surgical intensive care unit because

he was suffering from respiratory distress. (PX 85.0008). Dr. Richard Hastings, Plaintiff’s internal

medicine expert, testified that septic shock caused the respiratory distress. The sepsis was caused

by bowel leakage into the peritoneal space. As a result, Mr. Drenner had to be put on a mechanical

ventilator for support. Dr. Hastings testified that septic shock and respiratory failure caused Mr.

Drenner’s acute renal failure. (PX 85.0017; PX 981212, p. 37, l. 14 – p. 40, l. 10). Dr. Powell

12 PX 98 is the deposition testimony of Dr. Richard Hastings.

testified that Mr. Drenner’s kidneys were suffering as a result of his inflammatory or infectious

condition. (PX 97, p. 9, ll. 10-12).

29. Mr. Drenner was discharged from St. Francis on January 18, 2013 with the following

diagnoses on discharge:

1. Intra-abdominal abscess, secondary to perforated appendicitis.

2. Purulent peritonitis.

3. Septic shock.

4. Crohn’s disease.

5. Duodenal perforation with postoperative bile leak.

6. Acute respiratory failure/ARDS, requiring mechanical ventilation.

7. Acute renal failure, resolved.

8. Hyperglycemia.

9. Hyperphosphatemia.

10. Severe protein calorie malnutrition, improved.

11. Hypomagnesemia.

12. Hypocalcemia.

13. Acute blood-loss anemia.

14. Anemia of chronic disease.

15. Thrombocytosis, reactive.

16. Left-sided abdominal wall abscess, postoperative laparoscopic port location.

17. PICC-associated deep venous thrombosis, resolved. (PX 38).

30. In his October 19, 2019 report, Dr. Hastings indicated that the conditions listed on the

discharge diagnoses were the result of his intrabdominal peritonitis with septic shock and

multisystem failure. (PX 85.0006).

Additional Surgeries

31. The parties agree the following 7 surgeries were performed on Mr. Drenner after Dr.

Powell’s December 16, 2012 surgery, and the parties also agree that all of the surgeries were

performed within the applicable standard of care. (Doc. 128, V (e-n)):

(1) April 8, 2013 surgery in which Dr. Robert Goodwin (Dr. Powell’s partner), in which

Dr. Goodwin drained a large amount of purulent material from Mr. Drenner’s abdomen). (PX 40).

(2) June 11, 2013 surgery in which Dr. Powell did a takedown of the ileostomy and

connected the ileum back to the colon so that Mr. Drenner could have bowel movements again.

(PX 43; PX 96, p. 64, ll. 4-11).

(3) June 15, 2013 surgery in which Dr. Goodwin removed the part of the anastomosis that

had leaked, redid it, and fixed the duodenum with a piece of omentum. (PX 46; PX 96, p. 65, ll. 2-

17).

(4) November 27, 2013 surgery in which Dr. Goodwin drained purulent necrotic fat from

Mr. Drenner’s abdomen. (PX 53).

(5) April 18, 2014 surgery in which Dr. Femi-Pearse drained an abscess in the small bowel.

(PX 56).

(6) November 10, 2014 surgery in which Dr. Goodwin performed an exploratory

laparotomy, closed a fistula in the small bowel, removed part of Mr. Drenner’s intestine, and

repaired hernia defects. (PX 60).

(7) April 5, 2016 surgery in which Dr. Goodwin repaired an incisional hernia. (PX

62.0004).

32. Mr. Drenner last saw Dr. Goodwin on May 9, 2019 for follow up. Dr. Goodwin

indicated that Mr. Drenner was “well-known to our services after undergoing extensive abdominal

surgery. He’s also had a hernia repaired with an underlay of biological mesh.” Dr. Goodwin noted

Mr. Drenner was still having intermittent pain at his incision and had a sizable diastases rectus of

the epigastrium. Mr. Drenner indicated he did not want to have surgery at the time and Dr.

Goodwin agreed given the extensive surgery Mr. Drenner has already undergone. (PX 64.0005).

Standard of Care Testimony

33. Plaintiff’s expert, David Dreyfuss, M.D. is board certified by the American Board of

Surgery and the American College of Surgeons and is a fellow of the American College of

Surgeons. He attended medical school at the University of Vermont, graduating in 1981. He served

residencies at the University of Vermont from 1981 to 1983, and at Rutgers in New Jersey from

1983 to 1986, and completed a vascular fellowship from 1986 to 1987. He has been board certified

by the American Board of Surgery and has been a fellow of the American College of Surgeons

since 1987. He closed his practice of general surgery in 2016, and currently does wound care at

local, regional nursing homes and provides readings [at] the vascular laboratory at Our Lady

Lourdes Hospital in Binghamton, New York. At the time of the events giving rise to this suit, he

was still performing surgery, three days a week, one out of every three weekends 48 to 50 weeks

a year.

Dr. Dreyfuss testified that Dr. Femi-Pearse breached the standard of care and caused injury

to Mr. Drenner that necessitated all of the subsequent surgeries. Dr. Dreyfuss added that had Dr.

Femi-Pearse’s surgery been done within the standard of care, the subsequent operation and all the

further subsequent operations would not have been required. (PX 96, p. 58, ll. 5-18; PX 96, p. 116,

ll. 10-22).

34. Dr. Dreyfuss defined the standard of care as “what a prudent surgeon would do under

the same or similar circumstances” and in this case prudence required conversion to an open

procedure and performing an ileocolectomy. (PX 96, p. 37, l. 18 – p. 38, l. 4). An ileocolectomy

involves removal of part of the ileum and the colon until you find healthy tissue that will hold

when you staple them together. It is essentially the same surgery Dr. Powell performed on

December 14, 2012. (PX 96, p. 24, ll. 6-15; PX 37, ll. 1-13).

35. Dr. Dreyfuss testified that a surgeon should also switch to an open procedure when the

inflammatory process is so severe that he cannot safely staple the base of the appendix and know

that it is reliably closed. (PX 96, p. 15, p. 16, ll. 1-11). “A healthy cecum is soft and pliable and

feels like normal tissue. When the cecum is inflamed and bathed in pus, the base of the appendix

becomes initially very thickened but then becomes very thinned out and attenuated. When that

happens, the surgeon will have trouble stapling the appendix/cecum because it is like trying to

staple something to wet toilet paper.” (PX 96, p. 16, ll. 12-25; p. 17, ll. 1-14).

36. Dr. Femi-Pearse should not have tried to staple the cecum because it was severely

inflamed and deceased and the procedure was doomed to failure. Dr. Dreyfuss testified that

stapling Mr. Drenner’s cecum would be akin to stapling wet tissue paper and expecting it to hold.

Instead of trying to staple this mushy, wet toilet paper together, Dr. Femi-Pearse should have

converted to an open operation. (PX 96, p. 36, ll. 5-25).

37. Relying on the photos taken by Dr. Femi-Pearse during surgery, Dr. Dreyfuss testified

the photos confirmed there was too much inflammation to staple anything closed and that Dr.

Femi-Pearse should have converted to an open procedure. (PX 96, p. 40, ll. 2-22).

38. Dr. Dreyfuss was also critical of Dr. Femi-Pearse for proceeding with an operation in

which Dr. Femi-Pearse could not identify the appendix. (PX 96, p. 30, ll. 14-25). Dr. Dreyfuss

testified that it was perilous to proceed with the surgery in this case because the phlegmon was

obscuring the anatomy, and that it is hard to tell exactly what a surgeon is looking at when

everything is inflamed in one large, congealed mass. (PX 96, p. 34, l. 17 – p. 35, l. 2).

39. Dr. Dreyfuss also testified that Dr. Femi-Pearse was negligent because he was not even

sure what surgery he had performed, and “you can’t safely perform an operation without knowing

what it is you’re cutting and retracting and identifying.” (PX 96, p. 83, ll. 2-14; PX 96, p. 30, ll.

14-24). Dr. Dreyfuss testified that a surgeon has to see the specific structures because the surgeon

has to know what he is dividing or stapling. (PX 96, p. 17, ll. 15-21).

40. Dr. Dreyfuss identified PX 72, a publication from SAGES as a reliable source of

information with respect to appendectomies. (PX 96, p. 11, ll. 5-20). The publication identifies

reasons for a surgeon to switch to an open appendectomy, including the presence of an inflamed

or perforated appendix or the surgeon’s inability to see the patient’s organs (PX 72.0003).

41. Dr. Femi-Pearse testified that he was trained to convert a laparoscopic procedure to an

open procedure when “you can’t really make anything out. You know, when you cannot identify

structures specifically that’s the thought. Yeah.” (PX 80, p. 20, ll. 7-10; p. 21, ll. 12-15). Dr. Femi-

Pearse’s Operative Report confirms that he in fact could not identify the appendix yet he proceeded

to divide and staple what he thought was the appendix and the cecum. (PX 3). And the pathology

report identified the specimen with the staples in it as part of the bowel wall, not the appendix (PX

7). The Court finds Dr. Femi-Pearse’s deposition testimony that he was 99.5% sure he removed

the appendix and that he dictated his operative report “to make it sound graver than it actually

[was],” to be not credible. (PX 80, p. 15, l. 5-7; p. 17, ll. 7-23; p. 18, ll. 4-17 and p. 25, ll. 12-22).

42. Defendant’s medical expert, Khashayar Vaziri, M.D., F.A.C.S., is board certified by

the American Board of Surgery and is a fellow of the American College of Surgery. He attended

medical school at Rutgers University – Robert Wood Johnson Medical School—graduating in May

2001. He did his general surgery residency at George Washington University Hospital, graduating

in 2007. Dr. Vaziri did a one-year fellowship in advanced fascial intensive laparoscopic surgery at

Northwestern University in Chicago, finishing in 2008. He is a professor of surgery and program

director for the general surgery residency program at George Washington University in

Washington, D.C.

Dr. Vaziri testified that he believed Mr. Drenner had a “perforated probably disintegrated

necrotic appendix” at the time of the initial operation and that there was a complex phlegmon and

inflammation that would make it difficult to identify the tissues. (DX 59, p. 57, ll. 3-18). Dr. Vaziri

testified that although Dr. Femi-Pearse described what he thought was an appendix and stapled

across it, no appendix was found during Dr. Powell’s operation, or on the pathology report from

the ileocecectomy. (DX 59, p. 58, ll. 1-4).

43. Using photos taken during the surgery, Dr. Femi-Pearse identified what he claimed was

the appendix and cecal staple line on PX 17.0001. With respect to the structure that Dr. Femi-

Pearse identified in PX 17 as the appendix, Dr. Vaziri testified that he could not say that was the

appendix because the picture was too zoomed in for him to able to clearly say what it was. Dr.

Vaziri could not identify with specificity any structure or organ in any of the photos taken by Dr.

Femi-Pearce. (DX 59, p. 53, ll. 1-5). Dr. Dreyfuss testified that PX 17.0001 showed a grasper

grabbing tissue but he could not tell what it was. (PX 96, p. 39, ll. 11-23).

44. Dr. Vaziri agreed that PX 17.000113 showed a staple line on tissue but could not tell

whether the staple line was on the cecum. (DX 59, p. 55, ll. 1-13, p. 56, ll. 7-24). Dr. Vaziri testified

that Dr. Femi-Pearse thought the appendix to be a piece of necrotic tissue and isolated it and stapled

it. However, Dr. Vaziri testified that the pictures of the staple line do not show any necrotic tissue.

(DX 59, p. 55, ll. 14-22).

45. Dr. Vaziri admitted that the staples that Dr. Femi-Pearse fired into Mr. Drenner are

titanium and “would be there if he actually did staple across the cecum in the original operation”

and that if Dr. Femi-Pearse did not staple across the base of the appendix, “all we would see would

13 PX 17 are the same photos as PX 5 but contain Dr. Femi-Pearse’s handwriting that explains

what is on each photo.

be the two holes, as described in the pathology report, and the fistula.” (DX 59, p. 76, ll. 1-13). Dr.

Vaziri testified that because the staples allegedly fired into the cecum by Dr. Femi-Pearse were

not identified on any pathology report, they are still inside Mr. Drenner’s abdomen. (DX 59, p. 76,

l. 18 – p. 78, l. 18).

46. Dr. Nathan Powell operated on Mr. Drenner on December 14, 2012. Dr. Powell testified

that he was certain there was no staple line in the cecum based on his Operative Report and the

Pathology Report. Dr. Powell testified that the staples fired by Dr. Femi-Pearse were either still

inside Mr. Drenner, or possibly had been scooped out when Dr. Powell was removing stool and

inflammatory tissue from Mr. Drenner’s abdomen. (PX 9714, p. 28, l. 19 – p. 31, l. 5).

47. Dr. Vaziri testified that the standard of care for a particular surgery is “based on many

different things” including the “tenets of surgery and what is safe to do for the patient at that time.

Of course, it’s always first: Do no harm.” (DX 59, p. 27, ll. 14-20).

48. Dr. Vaziri testified Dr. Femi-Pearse’s surgery was within the standard of care because

Dr. Femi-Pearse “found a structure that resembled the appendix” and it was “coming from where

he thought the appendix was” and it was safe to divide the tissue with a stapler even though in fact

it may not have been the appendix. (DX 59, p. 19. L. 16 – p. 20, l. 3).

49. Dr. Vaziri testified that Dr. Femi-Pearse did not have to convert to an open procedure

because he “was able to perform the operation safely in a laparoscopic manner” and opening the

patient would have only caused more pain and complications. (DX 59, p. 20, ll. 16-22). He said

the same thing about the December 14, 2012 operation performed by Dr. Nathan Powell. In his

report, Dr. Vaziri stated that Dr. Powell’s December 14, 2012 surgery was “aggressive” and

14 PX 97 is the deposition testimony of Dr. Nathan Powell.

suggested that perhaps a less aggressive approach would have been more appropriate. (DX 54,

Report of Dr. Vaziri, p. 4).

50. In response, Dr. Powell testified that the resection was necessary because Mr. Drenner

had an uncontrolled process where he was septic with a high fever. Mr. Drenner had general

peritonitis and sepsis. He had been treated with antibiotics and drains for six days and was getting

worse, not better. In addition, Mr. Drenner had a large volume of stool in his abdomen with

purulence throughout. Dr. Powell testified there was no other way to control or get rid of Mr.

Drenner’s diseased tissue that was actively leaking. (PX 97, p. 25, ll. 3-22).

51. Dr. Dreyfuss testified that an ileocolectomy would have been a less aggressive

procedure than firing a stapler across a terribly inflamed cecum. (PX 96, p. 89, ll. 10-20). Dr.

Dreyfuss also testified that an ileocolectomy did not involve a higher risk of either an iatrogenic

injury or infection because Mr. Drenner already had an infection via a big abscess. (PX 96, p. 90,

ll. 3-18). Nor did Crohn’s disease pose any additional risks to doing an ileocolectomy. (PX 96, p.

90, l. 19 – p. 92, l. 18).

52. Dr. Dreyfuss agreed that Dr. Powell’s surgery was appropriate and that just placing

drains and washing out the abdomen would have been inappropriate because it would not allow

the quarter size hole in the cecum to heal. (PX 96, p. 96, l. 15 – p. 97, l. 14).

53. Dr. Vaziri testified that he would convert to an open procedure if he is unable to perform

the operation safely. (DX 59, p. 9, ll. 5-13). Dr. Vaziri admits that a surgeon should convert to an

open procedure when he cannot identify the structures and opening the patient would allow him to

identify the structures better. (DX 59, p. 51, ll. 5-19). Dr. Vaziri’s “overarching guideline is to be

able to perform the operation safely. If you’re unable to perform the operation safely in a

laparoscopic manner, and you can perform the operation safely in an open manner, then you should

convert to the open operation.” (DX 59, p. 67, l. 20 – p. 68, l. 2). Dr. Vaziri could not provide a

definition of “performing an operation safely” but said his general guideline is that the surgeon “is

able to complete the key portion of the operation that you set out to do in a safe manner without

causing harm to the patient.” (DX 59, p. 68, ll. 3-13).

54. The Court concludes the Plaintiff established by the greater weight of the evidence that

CIH and Dr. Femi-Pearse breached the standard of care owed to Mr. Drenner. The Court finds that

Dr. Femi-Pearse should have converted from a laparoscopic procedure to an open procedure and

his failure to do so is a breach of the standard of care.

55. Dr. Femi-Pearse admitted in his Operative Report that he had trouble identifying both

the cecum and the appendix and concluded at the end of the procedure that he was not even sure

he was able to locate the appendix. All doctors agree that Mr. Drenner’s colon and terminal ileum

were severely inflamed and surrounded by phlegmon, making it difficult for Dr. Femi-Pearse to

see what he was doing. The photos taken by Dr. Femi-Pearse during surgery confirm that Mr.

Drenner’s abdomen was severely inflamed, making it virtually impossible to identify any of the

structures in the photos. Dr. Vaziri could not identify any of the structures in the photos while Dr.

Dreyfuss confirmed the inflammation shown on the photos was so severe that staples could not

hold the inflamed tissue together. Dr. Vaziri did not contradict this testimony.

56. Dr. Femi-Pearse described taking a structure off the right abdominal wall but never

identified the structure. The Pathology Report shows that the specimens submitted were portions

of the bowel wall and not the appendix.

57. Dr. Femi-Pearse did not fire staples into the cecum but rather into an unknown structure.

58. The Court finds the Plaintiff’s evidence on this issue to be more credible. Dr. Dreyfuss

gave two reasons for converting to an open procedure, to wit; inability to identify the organs or

structures Dr. Femi-Pearse was dividing and stapling into the diseased and inflamed condition of

the structures shown in the photos. Those opinions are supported by the totality of the evidence as

well as PX 72, the SAGES publication. The court notes that Dr. Vaziri is a member of SAGES and

did not dispute the contents of PX 72.

Causation

59. The Court finds that the negligence of Dr. Femi-Pearse directly caused injury to Mr.

Drenner that in turn required all the subsequent surgeries. The medical records and the testimony

of Dr. Powell reveal that the stool and contamination he found in Mr. Drenner’s abdomen on

December 14 came from the hole in Mr. Drenner’s cecum. The purulent ascites was a response to

the stool in the abdomen. Dr. Powell testified that the stool had been leaking for a number of days

and that it would make sense that it had been leaking for the six days since Dr. Femi-Pearse’s

surgery.

60. Dr. Powell testified that the stool in the abdomen incited the inflammatory and

infectious reaction, which is the body trying to heal itself. The small bowel and colon area became

inflamed and thickened and diseased as a result of the inflammatory reaction caused by the stool.

Dr. Powell testified there was a diffuse reaction and inflammatory process going on. The bowel

was thickened and inflamed. The mesentery was inflamed and shortened, and the blood supply

was suboptimal given the inflammation to the cecum and right colon. (PX 97, p. 26, ll. 4-17).

61. Dr. Powell testified that he was dealing with complications that ensued from the 12-6-

12 surgery and that all of the treatment and surgeries performed by him and his partners dealt with

the complications that resulted from the 12-6-12 surgery. (PX 97, p. 26, ll. 18-25).

62. The Progress Notes from CIH support the finding that a leak of some size was present

shortly after the December 6 surgery. Dr. Vaziri testified that “the presences of purulent drainage

from the right gutter drain identified in the December 8-9 Progress Notes could be an early sign of

a leak, and there may be a small, small leakage in that area and that there may be a small breakdown

there.” (DX 59, p. 21, l. 15 – p. 22, l. 22). Dr. Vaziri testified that “the December 11 Progress Note

shows that the JP drain has turned possibly feculent and there is a concern there is a larger leak in

the cecum because of the change in the drainage.” (DX 59, p. 23, ll. 6-13).

63. The December 12 CT Scan Reports indicate a suspicion for bowel leak. (DX 9, p. 2,

4). Dr. Liebman and Dr. Femi-Pearse also suspected a possible bowel leak. (DX 10, p. 3; DX 11).

64. While the leak or hole in the cecum may not have been quarter size in the beginning,

Dr. Dreyfuss testified that the hole in the cecum became larger between the time Mr. Drenner was

transferred on December 12 and his December 14 surgery. (PX 96, p. 108, l. 15 – p. 109, p. 11).

Dr. Vaziri agreed that the hole in the cecum was present before Mr. Drenner was transferred to St.

Francis Hospital but claims Dr. Powell made it larger when he mobilized the cecum. (DX 59, p.

32, ll. 18-25).

65. Dr. Powell disagrees with Dr. Vaziri because when he mobilizes or frees up adhesions

to the colon he does so on the lateral side and the hole was at the bottom of the cecum so he would

not be doing much dissection there. He also testified he does not manipulate a perforation or a hole

to make it larger. (PX 97, p. 18, l. 20 – p. 19, l. 14).

66. The Court finds that Dr. Femi-Pearse’s failure to properly identify, divide, staple, close

and secure the cecum during his December 6, 2012 surgery caused the stool to leak from the cecum

into Mr. Drenner’s abdomen, which in turn required Mr. Drenner to undergo surgery on December

14, 2012.

67. With respect to the operations and hospitalizations after Dr. Powell’s December 14,

2012 surgery, the Court agrees with Dr. Powell and Dr. Dreyfuss that these surgeries were the

result of Dr. Femi-Pearse’s negligence on December 6, 2012. The Defendant contends these

operations were the result of the operation performed by Dr. Powell on December 14, 2012.

However, the parties agree that Dr. Powell’s surgery of December 14, 2012 was performed within

the applicable standard of care. (Doc. 128, p. 3). As the Court will discuss in more detail in its

conclusions of law, Dr. Femi-Pearse is liable for any subsequent injury or reinjury that is the

proximate result of his original wrongdoing.

Damages

Economic Damages

Past Medical Bills

The parties agree that the amount of past medical bills claimed by Mr. Drenner are

$182,900.65. (Doc. 128, p. 3). The medical bills are itemized in PX 65. The index in PX 65

indicates the amounts paid and not the amounts incurred. The Defendant has submitted affidavits

(DX 46-53) from the following healthcare providers that correlate with the amount Plaintiff is

claiming:

Provider Amount Paid

(1) Associated Anesthesiologists $10,298.26

(2) EMP of Tulsa County $1380.40

(3) KCI $0

(4) Lab Medicine of Greater Tulsa $1,050.00

(5) Radiology Consultants of Tulsa $2,062.91

(6) St. Francis Home Health $465.61

(7) St. Francis Hospital $131,748.77

(8) Warren Clinic Trauma $16,916.27

Total $163,922.22

The Plaintiff has submitted the ambulance bill from Pafford Medical Services for the

transfer from Claremore to St. Francis on 12/12/12 in the amount of $1071.00 that was apparently

paid by Indian Health Services. (PX 65.0025). The Court finds this bill is related to the Plaintiff’s

claims.

The Plaintiff has also submitted pharmacy bills from Sam’s Club for prescriptions for

oxycodone from January 24, 2013 through December 4, 2013 and from November 14, 2014 to

May 2016 in the amount of $661.03. (PX 65.0031-65.0040). Considering the fact that no evidence

was presented that Plaintiff had a history of taking pain medication before December 2012 and

considering that the time frames for the medication coincide with Plaintiff’s discharge from his

first hospitalization at St. Francis and also coincide with his subsequent surgeries, the Court finds

this bill is related to Plaintiff’s claims.

The Plaintiff has also submitted bills in the amount of $9,985.81 from Love & Hope 2

Counseling for the dates January 2014 through December 2015. (PX 64.0017-65.0024). These

bills coincide with the Plaintiff’s testimony regarding his psychological counseling and treatment

and are supported by PX 83. The Court finds these bills are related to Plaintiff’s claims.

The Plaintiff has withdrawn his claim to be compensated for the billing from Empower

Life Enhancement Services and New Opportunities Waiting.

Based on the above and foregoing, the Court awards the Plaintiff the sum of $175,650.17

for past medical expenses.

Future medical expenses

With respect to future medical expenses, the Court finds the report of Dr.Russell Green to

be more credible than the reports and testimony of Dr. Amal Moorad, and testimony of Lon Huff

and Dr. Richard Hastings.

Mr. Huff’s report details the medications, future diagnostic studies, future medical

evaluations, future surgical interventions, and projected therapeutic modalities that Mr. Drenner

may need in the future. (PX 88, Huff Report, pp. 7-9). Mr. Huff’s report and findings are based on

the reports of Dr. Richard Hastings and Dr. Amal Moorad.

Dr. Green reviewed 870 pages of Mr. Drenner’s prior medical records and also performed

a urinalysis for kidney function. He noted a solid repair which was stable, no deficiency in center,

and skin intact. The 2020 IME indicated stronger hands, Mr. Drenner was still fishing, and

experienced pain in his abdomen with lifting. During a 2 hour examination, Mr. Drenner did not

have to use the restroom. He opined that Mr. Drenner’s functional ability had improved

substantially; depression, while evident in the record, was not caused by the 2012 surgery; kidney

stones predated surgery in 2012, and low testosterone was not due to the 2012 surgery. He

concluded that while additional surgery may be possible, any anterior wall failure would be more

likely caused by bowel disease than anything else. He noted Mr. Drenner had been diagnosed with

Chron’s Disease as early as 2005, and had a history of abdominal pain since 2000.

Accordingly, the Court finds any award of future medical expenses would be speculative

and not based on the record.

Lost Wages and Impairment to Earning Capacity

Past Lost Wages

Mr. Drenner testified that he attended Union High School through 1989 and obtained a

GED shortly after he quit school. He also has some post high school formal education. (PX 92, p.

8, ll. 2-9). He started a business called Colors Custom Painting in 1997. In 2007, he added drywall

work. (PX 92, p. 10 – p. 11, l. 8). His work was physically demanding, requiring him to use a paint

sprayer that weighed 125-225 pounds; carry five-gallon buckets of paint and 40-foot ladders,

handle drywall sheets that weighed up to 67 pounds, and handle scaffolding that weighed 50-100

pounds per piece. The work also required frequent climbing, crawling, bending, lifting, and

squatting. Before 2012, he had only some “small limitations” in his ability to do that kind of work.

(PX 92, p. 11, l. 9 – p. 13, l. 4).

Mr. Drenner described his unsuccessful efforts to get back into the painting business during

his surgeries and recovery therefrom. (PX 92, pp. 30-32). Mr. Drenner testified he cannot

physically do the work required to be a painter or drywaller. (PX 92, p. 32 - p. 33, l. 3).

Mr. Drenner now works for Navico, a company that is in the locator business. He is an IT

expert. He goes on the road and troubleshoots and repairs fish locators and trolling motors for

fishermen all over the country. He is considered a contract laborer and is on the road for 13 weeks

a year. He also works in the warehouse doing inventory. (PX 92, p. 34, l. 12 – p. 35, l. 18).

When he is on the road, his bowels start moving at 4:30 – 5:30 in the morning. He has 3-

4 bowel movements by 8:00 a.m. He then takes Imodium to keep him from using the bathroom.

He makes frequent stops to use the restroom. (PX 92, p. 36, ll. 2-19).

Jody Murphy is a contractor and has known Mr. Drenner since 2000-2001. (PX 951516, p.

4, ll. 13-23). Mr. Murphy hired Mr. Drenner to put finish on the interior and exterior of log homes

he was building. Mr. Murphy testified Mr. Drenner’s work was good. Mr. Drenner worked on

multiple projects for Mr. Murphy until 2009 and he was satisfied with his work. (PX 95, p. 5, ll.

4- 19). Mr. Murphy did not notice any physical limitations that Mr. Drenner had that would prevent

him from doing his painting work. (PX 95, p. 5, ll. 20-23).

15 PX 95 is the deposition testimony of Mr. Murphy.

Mr. Murphy described the heavy lifting and physically demanding requirements of Mr.

Drenner’s job, lifting 5-gallon buckets of lacquer that weigh 70-80 pounds and setting up

scaffolding. (PX 95, p. 13, ll. 8-17). Mr. Drenner appeared to be physically fit while working for

Mr. Murphy. (PX 14, ll. 1-6).

Mr. Murphy contacted Mr. Drenner in 2014 to see if he could do some work for him on a

log home. Mr. Drenner told Mr. Murphy he was not physically able to do the work due to having

an operation, or operations. (PX 95, p. 6, ll. 6-17). Mr. Murphy contacted Mr. Drenner again in

2106 or 2017 and again asked him if he could do some work for him on his own personal home.

Mr. Drenner agreed to work but told Mr. Murphy he did not have a crew and would do it

personally. (PX 95, p. 6, l. 18 – p. 7, l. 6).

Mr. Murphy testified Mr. Drenner’s work was “acceptable” but did not think it was the

quality he used to get from Mr. Drenner. Mr. Drenner’s work was “much slower” and prolonged

as he would only work 3-4 hours before having to leave. (PX 95, p. 7, ll. 8-14). Mr. Drenner could

not physically work eight hours a day. He had difficulty getting up and down ladders and on

scaffolding. Mr. Drenner’s work “just wasn’t quite what it had been.” (PX 95, p. 7, ll. 19-24). Mr.

Drenner had trouble getting up and down on his hands and knees. (PX 95, p. 8, ll. 4-12).

Mr. Drenner’s Social Security Statements of Earnings and tax returns show the following

income:

2011--$31,409 (PX 79.0006)

2012--$16,548 (PX 79.0020)

2018--$18,475 (PX 79.0044)

2019--$ 1,341 (PX 79.0070)

Mr. Drenner testified he was approved for Social Security Disability Income while he was

still in the hospital and continues to receive those benefits to date. He has reported all earnings he

has made since 2012 to the Social Security Administration. (PX 92, p. 33, ll. 4-20).

William Clark, Ph.D. is an economist. PX 90 is a supplemental report prepared by Dr.

Clark on November 3, 2020. Dr. Clark reviewed invoices and other documents from Navico for

2020 and estimated Mr. Drenner’s total income for 2020 and up to February 1, 2021 to be $21,769.

(PX 90.0003).

Dr. Russell Green testified that when he examined Mr. Drenner in 2016, he thought he

could return to work “albeit it would be different than the work he had done for many, many years.”

(DX 6116, p. 20, l. 24 – p. 21, l. 1).

Lon Huff is a certified rehabilitation counselor who, among other things, evaluates a

person’s earnings potential and loss of earnings. As a certified rehabilitation counselor, he is

required to be aware of the job market, be aware of job requirements and to be aware of an

individual’s capabilities for work both physically and mentally. Over the course of his career, he

has personally worked on about 700-800 cases. (PX 9917, p. 9, l. 4 – p. 10, l. 5).

Mr. Huff described the methodology he uses to determine a person’s earnings potential,

including talking to the person, reviewing medical records, talking to doctors, reviewing job

descriptions published by the U.S. Department of Labor, and looking at average earnings for self-

employed individuals, again using U.S. Department of Labor information. (PX 99, p. 10- 13). With

respect to past earnings potential, Mr. Huff testified the average earnings for painters and

drywallers from 2014-2019 was $35,545. (PX 99, p. 31, ll. 5-25).

Mr. Huff was aware that Mr. Drenner had not earned more than $31,409 before his

surgeries but felt that was a little misleading as it showed only profit level. Mr. Huff testified the

best way to show loss of earning potential is to look at the average earnings and see if that person

16 DX 61 is the transcript of Dr. Green’s deposition.

17 PX 99 is the deposition testimony of Lon Huff.

can meet the average. Mr. Huff testified that methodology is generally accepted in the certified

rehabilitation counselor industry when dealing with self-employed individuals. (PX 99, p. 29, l.13-

p. 30, l. 10).

Mr. Huff computed Mr. Drenner’s past lost earnings to be $241,815.00 and noted that

figure should be reduced by any income earned by Mr. Drenner before trial. (PX 88.0010).

Dr. Clark further refined the amount of past lost earnings in his report and testimony. Based

on Mr. Huff’s report, Dr. Clark determined Mr. Drenner’s pre-resolution earning potential loss to

be $230,561. (PX 90.0001-90.0002). The Defendant did not produce any evidence to dispute Lon

Huff’s and Dr. Clark’s calculations. The Court finds that Mr. Drenner properly mitigated his

damages by trying to return to work from the time of his surgeries to the present. The Court

therefore awards Mr. Drenner $230,561.00 in past lost wages.

Impairment to Future Earning Capacity

In Mr. Huff’s report dated December 19, 2019 (PX 88), he noted that Dr. Amal Moorad

and Dr. Richard Hastings both stated that Mr. Drenner would not be able to return to work as a

painter and drywaller. (PX 88.0009; PX 99, p. 18, ll. 5-14; PX 99, p. 60, l. 23 – 25).

The defense expert, Ms. Wilson-Adkins, agrees that Mr. Drenner cannot return to his

previous job as a painter and doing construction and drywall work because he cannot do the

required heavy lifting. (DX 6019, p. 17, l. 24 – p. 18, l. 1-3).

In his report, Mr. Huff concluded that Mr. Drenner has a present and future earning

potential of $41,885, the more current average earnings potential for painters and drywallers. (PX

88.0009-88-0010; PX 99, p. 28, l. 7 – p. 29, l. 4).

Mr. Huff testified the best way to determine how much Mr. Drenner will earn in the future

is to figure out how much he earned in 2020. (PX 99, p. 33, l. 13 – p. 34, l. 34). Mr. Huff was

aware that Mr. Drenner testified he might get a job with Navico making $55,000-$65,000 a year.

Mr. Huff did not base his professional opinion on the speculation that Mr. Drenner might get a job

with a certain salary as no written evidence of a job offer or potential salary from Navico was

produced. (PX 99, p. 34, l. 15 – p. 35, l. 5).18

Dr. Clark took Mr. Huff’s figures and estimated that Mr. Drenner would earn mitigating

income of $20,055 in 2020. Dr. Clark then deducted that amount from Mr. Drenner’s future annual

earning potential of $42,340 and calculated Mr. Drenner’s future annual earnings loss to be

$22,285. (PX 90.0001-90.0003).

Dr. Clark determined Mr. Drenner’s work life expectancy to be 16.5 years. (PX 10019, p.

18, l. 15 – p. 19, l. 25). Dr. Clark used a discount rate to reduce future loss of earnings potential to

present value. (PX 100, p. 20, l. 6 – p. 21, l. 12; PX 90.0004, n. 7). Dr. Clark computed the present

value of Mr. Drenner’s future loss of earnings (impairment to earning capacity) to be $314,365.

The Defendant presented the reports and testimony of Christy Wilson-Adkins, who like

Mr. Huff is a certified rehabilitation counselor. Ms. Wilson-Adkins admitted she did not review

any of Mr. Drenner’s tax returns, Social Security Statements of Earnings, or his IRS tax transcripts.

She cannot tell the court how much money Mr. Drenner has made from gainful employment since

December 2012. She did not review any of the details of the job that Mr. Drenner has with

Lowrance (Navico) other than looking at Mr. Huff’s report. She testified that Mr. Drenner was

qualified to do a number of sedentary, light medium jobs, such as cashier, sales clerk, and

telemarketer. (DX 60, p. 11, ll. 5-12). However, she did not testify what those jobs paid.

18 PX 60 is the deposition transcript of Ms. Wilson-Adkins.

19 PX 100 is the transcript of Dr. Clark’s deposition.

The Court finds that the parties agree that Mr. Drenner cannot return to his work as a painter

and drywaller. The Defendant did not present evidence to dispute Mr. Huff’s calculations

regarding past loss of earnings and did not present evidence to dispute Dr. Clark’s calculations for

future loss of earnings. The Court therefore awards Mr. Drenner the sum of $314,365.00 for future

loss of earnings or impairment to earning capacity.

Noneconomic damages

Mr. Drenner was physically capable of performing heavy manual labor on a daily basis in

the years preceding his December 6, 2012 surgery. Mr. Drenner testified that before December 6,

2012, he had not had any kind of surgery. (PX 92, p. 13, ll. 5-9). Mr. Drenner had abdominal

problems when he ate green food and had small bowel movements. The doctors called it Crohn’s,

colitis, and ileitis. (PX 92, p. 13, ll. 12-22). Mr. Drenner got medical treatment and took

medications for that problem for a short time. (PX 92, p. 14, ll. 9-12). He learned to deal with it

and control it mostly through his diet and by making sure he had a toilet or bucket nearby. (PX 92,

p. 14).

Mr. Drenner had been using CIH as his primary source of medical care since he was 21.

(PX 92, p. 18, ll. 6-14). Mr. Drenner described flu-like symptoms and abdominal pain that required

him to go to CIH ER at 1:00 a.m. on December 6, 2012. (PX 92, p. 19, ll. 1-10). Mr. Drenner has

very little memory of what happened while he was at CIH. (PX 92, p. 21, ll. 10-16). His main

memory of his stay at St. Francis is waking up from what he describes as a coma on January 3.

(PX 92, p. 22, ll. 10-25).

Mr. Drenner described generally the surgeries that he has endured and the problems he has

had with respect to relearning basic activities of daily living, having to use a wound VAC for an

extended period of time and complications from his ileostomy that require him to use the bathroom

6-12 times a day. (PX 92, p. 24). Mr. Drenner constantly worries about the mesh that is holding

his stomach together, fearing he may bend over or do something that will cause his stomach to

reopen. He lives with these fears on a daily basis. He fears that if the mesh fails, he will be

permanently disabled and not able to do anything. (PX 92, p. 26).

Mr. Drenner identified PX 78.0001-78.0008 as photographs that show his abdomen during

and after the surgeries he has had. (PX 92, p. 27, ll. 4-17). Mr. Drenner identified PX 78.0009-

78.0012 as more recent photos that show his scarring and disfigurement. (PX 92, p. 27- 29).

Mr. Drenner testified that he lived with the condition of his abdomen shown in PX 78.0001

and 78.0002 for nearly two years. The doctors tried to close him up but the incision would not stay

closed. (PX 92, p. 37, l. 12 – p. 38, l. 5).

Mr. Drenner felt “low, worthless, suicidal” when he had to move back in with his mother

and stepdad. He said he did not want to live anymore. He described an episode in the hospital when

a nurse came to sit with him because he was “ready to end it.” (PX 92, p. 42, ll. 4-18).

Mr. Drenner testified he is building a new life with Navico, the company for whom he now

works part-time and his new girlfriend. He is however still dealing with “a very tremendous loss

in my life” and feels like he lost most of his 40’s. (PX 92, p. 43, ll. 1-11).

Mr. Drenner no longer plays golf and no longer goes deer hunting. (PX 78, ll. 7-14). His

ability to participate in fishing tournaments has been substantially impaired and he has to have a

partner do all the heavy physical work. (PX 77, p. 77, l. 11 – p. 78, l. 6).

Psychological Counseling

The Court has reviewed Mr. Drenner’s counseling records from Love & Hope Counseling

from January 2014 to December 2016. (PX 83). Mr. Drenner related a history to Therapist Regina

East of having a near death experience and being in a medical coma as a result of surgical

procedures. Mr. Drenner indicated he had “intense fear, memory loss, physical loss & feelings of

helplessness” after being told what happened. Mr. Drenner said he had to relearn all activities of

daily living. Mr. Drenner also referenced problems with his marriage and divorce. Mr. Drenner

said he often experienced recurrent and distressing recollections of the event by having to wear a

medical bag. Mr. Drenner said he often experienced intense psychological and physical distress.

(PX 83.0002).

Ms. East indicated that Mr. Drenner would benefit from individual, family and case

management services to identify sills to assist him with self-control, anger and coping with his

anger. (PX 83.0002). Mr. Drenner attended seventy-two (72) counseling sessions with the last

session taking place on December 16, 2015. (PX 83).

The therapy and counseling records show that Mr. Drenner’s primary problems were social

skills, coping skills, and trauma. His primary goals and objectives were to identify and process

positive changes, increase his self-esteem and community integration. (PX 83.0005; PX 83.0006;

PX 83.0096).

On January 27, 2015, Ms. East performed a one-year assessment. She noted slight progress,

then regression, little to no change, and not all goals having been met due to client having another

surgery. The assessment notes that Mr. Drenner requested continued individual services due to

being diagnosed with PTSD and anger management issues related to a severe illness and near-

death experience. The remaining portion of the assessment mirrors closely the original intake

information on PX 83.0002.

The last record from Love & Hope To2 Counseling is dated December 16, 2015 and

indicates that Mr. Drenner had made “Slight Progress”. Mr. Drenner was to identify and process

five changes he was willing to make and be more positive. (PX 83.0191). Mr. Drenner last saw a

counselor in 201820. (PX 92, p. 48, ll. 19-23).

Lay Witness Testimony Concerning Mr. Drenner’s Physical and Mental Condition

Glenee Grant is Mr. Drenner’s mother. Growing up, Eric did not have any surgery or other

physical limitations that would prevent him from doing work as a painter or drywall construction.

(PX 93, p. 4, ll. 11-17).

She was at CIH on December 6 and talked to Dr. Femi-Pearse after surgery. Dr. Femi-

Pearse told Ms. Grant that he did not know how Eric would do after surgery because he was so

full of infection. (PX 93, p. 8, l. 23 – p. 9, l. 1).

On the day Eric was transferred to St. Francis, she saw Dr. Femi-Pearse examine Eric

during which time pussy looking stuff came from Eric’s incisions. (PX 93, p. 10, l. 18 – p. 11, l.

9).

After Mr. Drenner was discharged from St. Francis, he lived with Ms. Grant for six years

in a little apartment on her property. (PX 93, p. 14, ll. 18-24). Ms. Grant testified that Mr. Drenner’s

incision had to be left open and treated with a wound VAC. (PX 93, p. 17, ll. 4-8). She identified

PX 78.0001as a photograph that depicted Mr. Drenner’s open incision. (PX 93, p. 17, ll. 9-25).

Ms. Grant testified that Mr. Drenner walked “stooped over” for a long time after he came

to live with her. She also testified that his temperament was bad, that it was hard to have a

conversation with him and you had to be careful about what you said to him. (PX 93, p. 19, ll. 9-

19). Mr. Drenner has less stamina than he did before all the surgeries. (PX 93, p. 21, ll. 11-14).

Regarding Mr. Drenner’s emotional problems, Ms. Grant testified that not being able to do

20 Counsel for Plaintiff was unable to obtain counseling records after December 2015. Plaintiff’s

counsel was able to get the bills for the counseling post December 2015 from Empower Life

Enhancement Services and New Opportunities Waiting. (PX 65).

fishing tournaments, not being able to do what he did before and having to live with his parents

for six years bother him the most. (PX 93, p. 21, ll. 15-25). She testified that Mr. Drenner’s outlook

on life is not that good and it has affected his relationship with her. (PX 93, p. 22, ll. 17-25).

Ms. Grant was aware of Eric’s marital problems. (PX 93, p. 6, ll. 2-12). Ms. Grant testified

that Mr. Drenner has moved on from that and does not say much about his ex-wife anymore. (PX

93, p. 22, ll. 1-6).

Chris James has known Mr. Drenner since they were 12 years old. (PX 94 21, p. 4, l. 19-

20). After drifting apart for a number of years, Mr. Drenner reached out to Mr. James in the midst

of all of his surgeries. (PX 94, p. 6, ll. 2-13, p. 8, ll. 2-3). Mr. James sees Mr. Drenner once a week

or once every other week. They sometimes go fishing and use Mr. James’ boat. Mr. Drenner only

drives the truck and backs it into the water. Mr. Drenner can no longer stand and fish all day but

has to lean back on what they call a “butt seat.” (PX 94, p. 10, l. 11 – p. 11, l. 11).

Mr. Drenner has to frequently use the bathroom and is embarrassed by that situation. Mr.

James testified that Mr. Drenner bends over really slow because he can feel his abdomen and does

not want to tear his mesh loose. (PX 94, p. 12, ll. 14-19). Mr. Drenner talks about this problem

quite a bit. Mr. James testified that if Mr. Drenner bends over to pick something up and thinks it

is going to hurt, he will “back out of it, ask me for help or whatever.” (PX 94, p. 16, l. 12 – p. 17,

l. 3). Mr. James testified that Mr. Drenner is suffering from a lack of confidence. (PX 94, p. 12, l.

25 – p. 13, l. 13).

Regarding Mr. Drenner’s emotional condition, Mr. James testified that Mr. Drenner will

call him to “vent” when he is upset. (PX 94, -p. 13, ll. 16-25). Sometimes Mr. Drenner will “break

down” when he calls. Mr. Drenner talks about losing his business and not being able to support

21 PX 94 is the deposition transcript of Chris James’ testimony.

himself like he thinks he should. Mr. Drenner feels like he “lost the majority of his 40’s” as a result

of all of the surgeries. (PX 94, p. 14, ll. 1-22).

Mr. Murphy testified that on one occasion Mr. Drenner “disappeared on me.” Mr. Murphy

found Mr. Drenner by his back door and “he was just sobbing; I mean visibly sobbing.” Mr.

Drenner went into “a long tirade about his life,” he had lost his business, had lost his wife, had lost

his house, and he did not know what he was going to do to recover his life. (PX 95, p. 8, l. 13 – p.

9, l. 9). Mr. Drenner did two more projects for Mr. Murphy after that. Mr. Drenner told Mr. Murphy

those would be the last painting jobs he could do. Mr. Murphy last saw Mr. Drenner on the day of

Mr. Murphy’s deposition. Mr. Drenner was teaching Mr. Murphy’s son how to stain and lacquer

cabinets. (PX 95, pp. 9-11).

Current medical condition

Dr. Hastings examined Mr. Drenner on October 10, 2019 and prepared three reports;

October 19, 2019 (PX 85); December 20, 2019 (PX 86); and March 4, 2020 (PX 87). Dr. Hastings

is board certified in internal medicine and utilizes the differential diagnosis methodology. (PX 85).

Dr. Hastings described internal medicine by referring to a definition set forth by the American

College of Physicians. “Internal medicine or internists are specialists who apply scientific

knowledge in clinical expertise to diagnosis, treatment and compassionate care of adults across the

entire spectrum from health to complex illnesses. They are especially well trained in diagnosing

puzzling medical problems and in the ongoing care of chronic illnesses and caring for patients with

more than one disease process.” (PX 98, p. 7, l. 20 – p. 8, l. 5). Dr. Hastings has a Ph.D. in anatomy

and has taught anatomy and other courses in medical school. (PX 85.0001-0002).

Dr. Hastings testified that diagnosing and treating Crohn’s Disease, abdominal abscess and

internal complications caused by laparoscopic appendectomies are within the purview of internal

medicine. (PX 98, p. 8, l. 15 – p. 9, l. 4).

Dr. Hastings reviewed Mr. Drenner’s medical records, took a history from Mr. Drenner

and conducted a physical examination. Dr. Hastings testified that Mr. Drenner’s biggest problem

was abdominal pain and limitations caused by his abdominal pain. (PX 98, p. 17, ll. 6-17). Mr.

Drenner’s abdominal pain is continuous and gets worse when he gets up from lying down, getting

in and out of cars and doing activities that involve pushing, bending, and lifting in certain positions.

Mr. Drenner described his pain as a burning type of pain, which Dr. Hastings said most likely was

caused by injury to superficial nerves during some of his surgeries. (PX 98, p. 18, ll. 7-25).

Dr. Hastings testified that Mr. Drenner has “an incredibly weak and very friable abdomen”

as a result of the many surgeries he has had. Activities that increase intraabdominal pressure or

cause movement or pressure on the abdomen will cause pain. (PX 98, p. 28, ll. 10- 20). Dr.

Hastings testified that Mr. Drenner’s abdominal pain is persistent and permanent, resulting in

weakness and instability of the abdominal musculature that has in turn resulted in permanent loss

of some of Mr. Drenner’s previous activities. (PX 98, p. 41, ll. 2-10).

Regarding Mr. Drenner’s mental pain and suffering, he told Dr. Hastings that he was very

despondent about things he could not do now that he could do previously. Mr. Drenner said he

was frustrated over his inability to do certain physical activities because those activities made his

pain worse. Mr. Drenner told Dr. Hastings he was having nightmares, flashbacks, bad dreams

where he would relive some of the horrible pre and post-operative activities he experienced. (PX

98, p. 19, ll. 16-25).

Mr. Drenner also expressed anxiety about his financial situation past and future due to his

inability to work much as a result of the surgeries. (PX 98, p. 20, ll. 8-20). Mr. Drenner told Dr.

Hastings he has 6-10 bowel movements a day and uses medication to try to reduce the bowel

frequency to keep from being embarrassed.

Dr. Hastings was aware of Mr. Drenner’s previous mental health issues involving his ex-

wife but testified that Mr. Drenner had moved on from those problems and was currently in a

relationship with which he was happy. Dr. Hastings concluded that Mr. Drenner’s past marital

problems did not seen to be a driving force with respect to his current mental health issues. (PX

98, p. 52, ll. 1-23).

Dr. Hastings reviewed Mr. Drenner’s counseling records from Love and Hope and

indicated the records contained a diagnosis of post-traumatic stress disorder, a diagnosis with

which Dr. Hastings agreed. (PX 98, p. 1-19).

Dr. Hastings testified that Mr. Drenner has a “consequential psychological overlay”, which

he described as a psychological mental health condition resulting from an injury or medical

condition not associated with mental health issues. (PX 98, p. 46, l. 10 – p. 47, l. 4).

Dr. Hastings testified that Mr. Drenner’s injuries are permanent. (PX 98, p. 53, ll. 4-12;