01STOCK_GAVEL

JANESVILLE

Robert Vyvyan of Milton underwent a common medical procedure in June 2015.

A probe of his esophagus led to a puncture, complications and extreme pain.

Vyvyan filed a medical malpractice lawsuit three years later against the doctor who performed the procedure—Dr. William Brandt, an internal medicine specialist at SSM Health St. Mary’s.

Brandt is now retired after providing care for 42 years in Janesville, one of his attorneys said Monday as a trial opened in the case in Rock County Court.

In his opening statement, Vyvyan’s attorney, Scott Salemi, repeated the accusation that Brandt failed to provide proper care, resulting in pain that Vyvyan continues to suffer.

Vyvyan is suing Brandt and MMIC Insurance, for medical and legal costs and “such further relief as the court deems just and equitable.”

Defense attorney Mark Budzinski countered that no medical procedure is risk-free, and in this particular procedure, punctures are seen in 1% of cases.

Salemi described Vyvyan being rushed in “terrible pain” from Janesville to UW Hospital in Madison for emergency surgery the same day as Brandt performed the upper endoscopy.

“He thought he was dying,” Salemi said. “His thoughts were for his pregnant wife and young daughter.”

Vyvyan spent 11 days in the hospital and survived. He and Brandt sat passively in court Monday as the jury was selected and lawyers made their opening statements.

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

Vyvyan saw an SSM general practitioner, who referred him to Brandt for both upper and lower endoscopies, Salemi said. A lower endoscopy is also called a colonoscopy.

Upper endoscopies are common. There were probably several of them happening in Janesville while the jury heard the opening statements, Salemi said.

According to Salemi, Vyvyan had never seen Brandt before that day, and the procedure was supposed to be investigative only, but Brandt encountered a narrowing of Vyvyan’s esophagus and decided to perform a dilation.

The dilation, or stretching, of the esophagus was done by inserting progressively larger dilators, Salemi said.

Brandt eventually used the biggest dilator he uses, 20 millimeters in diameter, leading to the puncture, Salemi said.

A key dispute in the case is whether Brandt followed the accepted standard of care for this procedure. Both sides are expected to present experts to bolster their claims.

“Dr. Brandt’s conduct permanently has altered Robert Vyvyan and his family’s life,” Salemi said.

“We know that there is nothing in life that is risk-free, and that includes the field of medicine,” Budzinski said.

Brandt reviewed the risks with Vyvyan, “and we’ve all been through that discussion,” Budzinski said. “You will hear evidence that the No. 1 risk is perforation of the esophagus, and that was gone through with Mr. Vyvyan.”

During the procedure, Brandt found a “non-inflamed and fibrous ring,” made of scar tissue, Budzinski said, and so, consistent with the consent form that Vyvyan signed, Brandt dilated the ring to alleviate the swelling.

Brandt didn’t see any unusual resistance to the dilators and didn’t “force them down,” Budzinski said.

“He treated Mr. Vyvyan the same way he treated thousands of patients before him,” Budzinski continued. “He did what reasonable physicians in this position would do.”

Vyvyan was able to eat and drink after the procedure, without pain, Budzinski said, and he ate again when he got home. Then he took a nap.

About an hour later, he awoke in “excruciating pain,” Budzinski said, which led to his ambulance ride to Madison.

“It’s a significantly painful complication to have. Nobody disputes that,” Budzinski said.

Salemi is expected to continue his case into Tuesday, with the defense to follow. Budzinski cautioned the jury not to make any decisions about the case until they had heard both sides.

The trial is scheduled to continue into Wednesday. If more time is needed, the trial would skip Thursday and conclude on Friday.

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