Malpractice defense: Paraesophageal Hiatal Hernia Following Nissen Fundoplication

In addition to my consulting work and writing the Health Business Blog, I’m chairman of the board of Advanced Practice Strategies (APS), a medical risk management firm that provides litigation support for malpractice defense and an eLearning curriculum focused on enhancing patient safety.

To learn more contact: Timothy Croke, Director of Demonstrative Evidence Group. or 617-357-0553 ext. 6664.

Here’s the Advanced Practice Strategies case of the month.

Judgment for the Defense
Paraesophageal Hiatal Hernia Following
Nissen Fundoplication

In June 2003, the 41-year-old male plaintiff underwent an elective Nissen fundoplication to address a 10-year history of symptoms from gastroesophageal reflux disease.  An endoscopy performed just prior to the procedure had demonstrated distal esophagitis, indicating that the Nissen procedure would greatly improve the plaintiff’s condition. The surgery was completed without any adverse event, and the plaintiff recovered well, experiencing great improvement in his reflux symptoms.

Six months later, the plaintiff complained of “bubbling” sounds and sensations just above his diaphragm. Upper gastrointestinal tract radiography (i.e., an upper GI series) was performed, which appeared to demonstrate that a portion of the gastric wrap around the distal esophagus, undertaken during the fundoplication, had herniated back through the esophageal hiatus of the diaphragm.  The patient was counseled that he needed surgery to repair the hernia, which would involve reducing the stomach back into the abdomen and repairing the defect in the esophageal hiatus. The surgeons performed the paraesophageal hiatal hernia repair without any complications.

Following the repair, the plaintiff developed complaints of anorexia and bloating.  GI studies were inconclusive for a vagal injury.  Subsequently, the plaintiff underwent several additional surgeries, including a pyloroplasty, cholecystectomy, and jejunostomy for enteral tube feedings. Despite receiving tube feedings directly into his small intestine, the plaintiff continued to report symptoms of bloating and an inability to maintain his weight.  He eventually underwent a gastric Roux-en-Y procedure.


The plaintiff maintained that he suffered a bilateral vagus nerve injury during either the initial Nissen fundoplication procedure or the subsequent paraesophageal hernia repair.  He ascribed to this nerve injury his inability to tolerate significant oral intake, necessitating placement of the jejunostomy feeding tube. Despite this intervention, the plaintiff claimed, he remained unable to tolerate sufficient nutrition, resulting in a moderate amount of weight loss.


The defense disputed these claims, indicating that at no point prior to or following the paraesophageal hernia repair did the plaintiff’s weight drop below his ideal level. The plaintiff continued to report an inability to tolerate food, despite extraordinary treatment measures and multiple surgeries, but his weight remained well within, and even above, his ideal body weight, despite taking in only a fraction of his daily requirement via tube feedings. GI radiographic studies were inconsistent and failed to support the definitive diagnosis of a vagus nerve injury. Even if such evidence had been found, however, a vagus nerve injury is a known complication of a Nissen fundoplication, a risk which would have been reviewed with and accepted by the plaintiff during the informed consent process.



Collaborating with the defense experts and attorney, APS created visual aids to illustrate their position.

The first diagram explained the normal anatomy of the esophagus, stomach, and vagus nerve in relationship to the diaphragm.

The next diagram illustrated the paths of the anterior and posterior vagus nerves at the gastroesophageal junction.

A third diagram showed the normal anatomy of the vagus nerves on the stomach and the surrounding anatomy.

The next board in the series indicated the initial aspect of the Nissen fundoplication, involving exposure of the vagus nerves and gastroesophageal junction.  Surgical photographs were used in conjunction with the illustrations to help show the complexity of the area and what surgeons actually see when performing the procedure.

The fifth board illustrated the second aspect of the Nissen fundoplication:  mobilizing the fundus of the stomach and wrapping it around the distal esophagus.

Another surgical diagram was created to show the subsequent repair of the paraesophageal hernia.

The final, key piece was a timeline graphing the plaintiff’s weight over an extended period of time.  This helped the jury to understand that the plaintiff’s weight remained at or above his ideal weight range before, during, and for an extended period following the numerous procedures.

This series of illustrations helped the defense successfully convey to the jury the following key points:

  • As is the case for all surgical procedures, Nissen fundoplication and hiatal hernia repair are associated with known risks.  The risks of these particular surgeries include Injury to the vagus nerves, due to their proximity to the area in which the procedures are undertaken.   Although the plaintiff did have weight loss after his procedures, he never became malnourished. He stayed at or above his ideal weight range while under the care of the defendant.


The jury found in favor of the defense.

“We received a defense verdict yesterday: our clients are very happy. Thanks for your work on this case; your drawings and exhibits were very helpful. ”

—Attorney, Patrick Koenon, Hinshaw & Cubertson, LLP, Appleton, WI
June 22, 2011

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