Recent Success

Arbitration Defense Verdict on Behalf of San Diego Surgeon

On, March 15, 2019, Hugh McCabe and Alan Graves obtained a defense verdict on behalf of a San Diego surgeon. The case involved a 54-year-old female who sought elective endoscopy weight loss procedure placing two saline filled intra-gastric balloons in her stomach for a period of six months.  The patient was doing well with no reported symptoms and losing weight.  Four and half months later the patient reported abdominal pain and was taken to the Emergency Department.  Patient was diagnosed with a “pin hole” stomach perforation, likely caused by the intragastric balloons.  The attending physicians were unable to remove the intragastric balloons endoscopically or laparoscopically.  The intragastric balloons were removed and the perforation was repaired through an open surgical procedure. 

The patient brought an arbitration claim against the surgeon alleging the surgeon was negligent in the treatment provided.  The patient argued the intragastric balloon device was used “off label” from its FDA approval, the patient claimed she was never informed of this, and the surgeon should not have recommended the elective procedure as she was not a good candidate.

At arbitration, defense was able to demonstrate sufficiently plaintiff was informed of the off-label use of the medical device.  She was also informed of the risks of the procedure which included the possibility of a stomach perforation. The evidence also supported the patient had poor medical compliance with her follow up appointments and taking her medications which were specifically prescribed to prevent increased acid in the stomach.  Defendants medical expert opined plaintiff’s failure to take her prescribed medications likely contributed to the stomach perforation.  The defense medical expert also opined an ulcer and stomach perforation can happen absent negligence and is a known risk of the procedure which can happen absent negligence.

Following a four-day arbitration, the Arbitrator issued a decision returning a defense verdict on behalf of the defendant physician.


Hugh A. McCabe is a shareholder in our San Diego office. He concentrates his practice on employment law, business litigation, medical malpractice and trucking and transportation matters. For further information, Mr. McCabe can be reached at (619) 238-1712 or hmccabe@neildymott.com.

Alan B. Graves is a shareholder at Neil Dymott. His areas of practice include professional liability, business and employment matters and general civil litigation. For further information, Mr. Graves may be reached at agraves@neildymott.com.

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