UPDATE: Rock County jury finds doctor negligent

·3 min read

Oct. 13—JANESVILLE — Robert Vyvyan seemed overcome with emotion Wednesday as a Rock County jury agreed with him that a doctor had been negligent, poking a hole in his esophagus six years ago.

The jury voted 10-2 for the verdict against Dr. William Brandt, a longtime local internal medicine specialist, and MMIC Insurance. A 10-2 vote is enough for a verdict in a civil trial.

"It's what I had hoped for, prayed for," Vyvyan said afterward.

The jury awarded Vyvyan more than $500,000: $400,000 for future pain and suffering; $100,000 for past and suffering; $70,000 for medical expenses; and $12,000 for lost income.

"It wasn't about the money. I'm a professional engineer, and the most important thing in my profession is to do no harm, and I think that falls right in line with being a doctor," Vyvyan said.

Vyvyan, of Milton, filed his lawsuit in 2018, claiming malpractice in Brandt's performance of an upper endoscopy. The procedure involves a probe inserted through the mouth and throat to view Vyvyan's esophagus, the tube that conveys food to the stomach.

Vyvyan was having trouble swallowing, had lost weight and had blood in his stool. He occasionally could not swallow at all and had to force himself to vomit.

The procedure at SSM Health St. Mary's Hospital-Janesville was intended to get view of the problem with a fiber-optic camera. Brandt saw what he thought was a ring of scar tissue that had narrowed the esophagus, so he inserted devices called dilators to widen the esophagus.

Vyvyan went home after the procedure feeling fine, but he awoke from a nap in intense pain, and he was taken to UW Hospital for emergency surgery, said his lawyer, Scott Salemi.

Salemi said Brandt erred in not seeing that Vyvyan's esophagus was inflamed and therefore susceptible to perforation. Salemi also suggested that more conservative treatment—an acid blocker or steroids—could have helped Vyvyan while avoiding the injury.

Defense attorney Mark Budzinski said Brandt did what he had done thousands of times before as an internal medicine specialist in Janesville for more than 40 years: He saw a ring of scar tissue and tried to expand the structure with dilators.

Budzinski pointed out that adverse outcomes are seen in 1% of these procedures, and this was just one of those times.

"Bad things happen to good people. That doesn't mean it's always somebody's fault, that somebody was negligent," Budzinski said.

Brandt started the endoscopy programs in Janesville, Fort Atkinson and Stoughton, Budzinski said, and he had performed the same procedure 9,000 times before he treated Vyvyan.

Budzinski described Brandt seeing the narrowing, diagnosing it as scar tissue, and performing the dilation.

"If that's medical negligence, ladies and gentlemen, God help us. That's the definition of the standard of care, the same process he had used for 40-plus years."

Salemi said the defense was trying to pull the wool over the jury's eyes.

The problem in the esophagus was inflammation, not scar tissue, and Brandt made the wrong treatment decision, he said. The doctor and his insurance company should be held responsible for the mistake, Salemi said.

Salemi suggested compensation for medical expenses, past pain and suffering, lost wages, and future pain and suffering could be in the millions of dollars. But Salemi said he wanted to be "practical," so he suggested a $600,000 award for past suffering.

As for future pain and suffering, Salemi left it up to the jury. Vyvyan, a part-time farmer, will have times when he can't lift a hay bale or feel pain when he plays catch with his son, Salemi said, and Vyvyan is a young man, so he'll have a lot of those days.

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