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 pain 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 and had lost weight. 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 a 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. Salemi suggested 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.
Salemi argued that Brandt should have diagnosed eosinophilic esophagitis, commonly known as EoE.
EoE is a chronic immune-system disease that inflames the esophagus, as a reaction to food, acid reflux or allergens.
EoE increases the risk of perforations in this procedure and could have been treated with steroids, Salemi said.
"Dr. Brandt wasn’t some kind of treating physician. Dr. Brandt was a cog in the medical system wheel. Dr. Brandt was simply there to scope people, offer dilations and move on,” Salemi said.
“Dr. Brandt took a look at the esophagus, saw a narrowing, did what he has done thousands … of times. … (Brandt) was not a board-certified gastroenterologist, just someone at the hospital doing scopes, just scope after scope after scope, which are relatively routine,” Salemi said.
Budzinski scoffed at the description of Brandt as a cog.
“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 as doing the same job any doctor would have.
“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.
Brandt made the wrong treatment decision, so 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 will 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.