BUFFALO, NY-- Last October Dick Kirby's heartbroken family held a memorial service for him.
"He's our dad, he's our mom's husband, he's our poppa," said Kirby's son Chris during the service.
Last August, Dick Kirby went to Kenmore Mercy Hospital for disc fusion surgery on his back.
Scott Brown: "On a scale of one to ten how difficult was the surgery for Mr. Kirby?"
Dr. Andy Cappuccino: "On a scale of one to ten, this is the appendectomy of spine surgery, it's a three or a four."
Kirby's surgeon was Dr. Andy Cappuccino, the noted spine surgeon who had helped to save the Buffalo Bills Kevin Everett from paralysis.
Kirby's son Chris drove him to the hospital last August 27th.
Chris Kirby: "So I dropped him off, told him I loved him and went off to work. Then things started to change..."
Dick Kirby was an icon in the world of game calling and turkey hunting.
He took a hobby of making turkey calls, and along with his wife Bev, started a business-- Quaker Boy -- in the front room of their home in Orchard Park that grew into an industry leader.
Bev Kirby: "We really started with nothing. We had each other and a work ethic and a blessing from God and built an incredible business."
Bev and Dick married in 1965, they had been high school sweethearts.
Bev Kirby: "There was one thing I could say to anyone and that was I married a Godly man. And that moral fiber ran through him and sustained him and us."
Dick and Bev had three kids; Scott, Chris and Rebecca.
Dick's life revolved around Bev and the kid, the family's business and his love of the outdoors.
And that was something that Bev grew to love as well.
Starting ten years ago, Bev and Dick added the title of grandma and grandpa to Gabe, Gwen and Eli.
Scott Brown: "It seems like you guys had this idyllic life?"
Bev Kirby: "We were blessed by God to be together and to have the life that we had. Yeah it was special."
Last year, Dick began experiencing pain and weakness in his legs caused by a back problem.
It made it next to impossible for him to continue hunting and his active life style, so he scheduled a disc fusion surgery with Dr. Cappuccino.
Dr. Cappuccino had performed a similar surgery on Kirby about eight years ago and all had gone perfectly.
The new surgery was set for last August 27th, it would be the last day that the Dick Kirby his family knew would exist.
Bev Kirby: "Dick when he got up in the morning was in a good mood, he couldn't wait to get there.
Dr. Cappuccino: "He had the heart of a lion."
The surgery lasted for about two hours.
Dr. Cappuccino: "He woke up, his spinal cord monitoring was perfect. He woke up completely numerologically intact and moving all of his parts quite nicely.
"Before leaving the hospital, probably 10:30, 11:00 in the morning, I went back to the recovery room just to check in and say good bye, and Dick was being attended to comfortably by the recovery room staff, he was doing beautifully."
Scott Brown: "He was talking, he was coming out of anesthesia, he was in good shape?"
Dr. Cappuccino: "Yes he was and I was quite pleased with the results of the day."
That afternoon, a few hours later, Dr. Cappuccino called the hospital to check on Dick Kirby.
Dr. Cappuccino: "The nurses told me he was being attended to by the emergency staff, that he had undergone a cardiac arrest. Obviously I was shocked, I got into my car and sped to the hospital as quickly as I could."
Cappucino called Chris Kirby's wife.
Chris Kirby: "I could tell by the look on her face that something had gone wrong."
Something had gone terribly wrong.
Dr. Cappuccino says the hospital violated its own rules when it came to Kirby's post-operative care.
According to hospital records obtained by 2 On Your
Side, despite the fact that Dick Kirby was not ready to be transferred out of a post-surgical care unit, he was sent to an unmonitored, regular hospital room.
Dr. Cappuccino: "He was transferred to an unmonitored bed on a routine floor that did not meet with written hospital criteria, did not meet with written hospital protocols.
"Even worse, he was placed on a monitor, a special monitor for his blood pressure, his heart rate and the amount of oxygen in his blood. All post-operative patients have this, it has an alarm. The alarm was ringing, nobody attended to him."
According to hospital records obtained by 2 On Your Side, Mr. Kirby's monitor had been "blunted" or muted by a nurse, and he was left unchecked for 45 minutes before being checked on.
Cappuccino says hospital records show that by the time Kirby was finally checked on it was too late, his heart had stopped and his brain had been deprived of oxygen.
Dr. Cappuccino: "All of the medications he had been given in the recovery room slowly but surely caught up with him - narcotic medications and muscle relaxants will have a cumulative effect and that's why we put patients on monitors that have these medications.
"So there were a handful of black and white written hospital protocols that were violated that resulted in a cardiac arrest and subsequently his demise."
By the time Bev and their children arrived at the hospital, Dick Kirby was in the ICU and on a respirator.
Chris Kirby: "By that point from what we know now, it didn't matter."
Dick Kirby was brain dead.
Dr. Cappuccino: "I was irate, I demanded an immediate investigation."
Scott Brown: "When you asked what had happened what kind of answers did you get?"
Dr. Cappuccino: "That there was confusion, he was in a lot of pain, that they were trying to medicate him properly, that the anesthesiologist in question was busy."
Shortly after, the family met with members of the hospital's staff and administration.
Bev Kirby: "They told us their own procedures had not been followed. And as each mistake was made, it became worse and worse and worse until Dick was gone."
The family then spent the next month praying for a miracle - that somehow Dick would recover.
Bev Kirby: "To see him deteriorate was just torture."
About a month later, the family decided to end life support.
Chris Kirby: "Dad was such an incredible Christian soldier and his work on earth was done and God took him home, and I'm going to see him again....but it doesn't make it easier here."
Five days later, still in shock, the family held that memorial service for Dick.
Chris Kirby: "There's a piece missing that shouldn't be missing."
Bev Kirby: "When you get married it's like taking two pieces of paper and gluing them together, and when you rip those papers apart that's what you have left, a mess."
Scott Brown: "Should Dick Kirby be alive today?"
Dr. Cappuccino: "Dick Kirby should be alive today."
Scott Brown: "Is there any way anybody could say that you were in part responsible for his death?"
Dr. Cappuccino: "That's one of the things that keeps me awake at night and if there's any culpability on my part, maybe it's making the decision to treat Dick where I treated him.
"From the technical standpoint, an actual medical-surgical standpoint, I feel quite good and my conscience is quite clean."
In March, the family sued Kenmore Mercy and the Catholic Health System and two anesthesiologists involved in his treatment.
The lawsuit states that the medical care Kirby received was "negligently, carelessly and unskillfully performed" and that the care was the "cause and/or was a substantial factor in bringing about Mr. Kirby's injures and death."
The family is not suing Dr. Cappuccino.
Scott Brown: "Why is the family not suing Dr. Cappucino?"
Family Attorney Tom Burton: "In our view it would be unethical and inappropriate to take a run at Dr. Cappuccino when he did nothing wrong. He successfully completed his surgery with his patient."
Bev Kirby: "Dr. Cappuccino didn't lose him, he came through the surgery fine. Something was done after the surgery - I hold those people responsible."
The Catholic Health System, Kenmore Mercy and the two anesthesiologists deny they caused Dick Kirby's death.
The Catholic Health System declined three opportunities to do an interview with 2 On Your Side about this case...in a statement it said: "Catholic Health is committed to providing the highest quality care to all its patients. We have a very active Performance Improvement program, which continually reviews policies and procedures to ensure the utmost safety. We extend our deepest sympathies" to the family.
In its response to the family's lawsuit, the Catholic Health System, although not going into details, uses what's called a "comparative negligence defense"- claiming that Bev Kirby "if not the sole cause of the damages sustained by her as alleged in the complaint, contributed to the injuries and damages" that she suffered as a result of her husband's death.
Family Attorney Tom Burton: "I think it's an outrage that the hospital would suggest that this poor man or his wife were comparatively negligent, and we're hoping the effect of that won't be lost on a jury down the road."
Scott Brown: "People who are watching this may say 'oh they're in this for the money'. What do you say?"
Chris Kirby: "It's not about the money, it never has been with the Kirby family."
Bev Kirby: "We're fine, we always were and we will always will be. It's just a tool, it's just a tool, a means by which to say 'pay attention', get this right."
Chris Kirby: "Our whole point is to ensure that nobody has to go through what we've been through ever again."
Bev Kirby: "Dick died too soon, and he didn't die, he was taken. And that's just, it's just not right, it's just not right. I don't want to speak publicly about this but I have to.
"I need this story told for Dick. This is his story, this is what happened to him and it needs to be told and I need to honor him by telling it."
Dr. Cappuccino says he has not performed any operations at Kenmore Mercy since February and will not do so until he feels more confident about how the hospital handles post-operative care of patients.
The Catholic Health Sysem says Cappuccino performed some-80 operations at Kenmore Mercy following Dick Kirby's procedure.