On January 13, 2011, a woman visited Dr A’s office for a pregnancy termination. However, Dr A did not meet or treat her. The pregnancy termination was performed by Dr B, a nonemployee independent contractor. The patient completed a medical history form that indicated that she had been pregnant 6 times, resulting in 2 live births and 4 induced abortions. The patient then underwent a transvaginal ultrasound, which confirmed the pregnancy. After she and Dr B signed the consent form, the dilation and curettage (D & C) was performed under deep sedation.
Anesthesia began at 11 am and the procedure began at 11:05 am. Dr B used ultrasound guidance because the patient was high-risk for uterine perforation due to her 2 previous cesarean deliveries and 4 previous terminations. The procedure was completed at 11:11 am and the patient was taken to the recovery room. At the conclusion of the procedure, the patient was moved to the recovery room, where she was monitored from 11:15 am until 12:35 pm. The patient’s vital signs were stable and she had no complaints beyond light bleeding. The patient was given antibiotics and pain medication prior to her discharge at 12:35 pm.
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As the patient was dressing, she developed pain and felt as if she needed to urinate. The patient did not return to the procedure room but she instead spoke to a staff member and told her that she had pain. The patient then attempted to use the bathroom but was unable to. The patient was then examined by a family nurse practitioner (NP). In her note, the NP documented that the patient had cramping but was ambulating and had used the restroom. The patient refused to undress for the exam but it was noted that her abdomen was soft, non-tender and non-distended, and bowel sounds were present. The NP told the patient that cramping and bleeding were to be anticipated after a pregnancy termination and the patient verbalized her understanding.
The patient left the office, walked to the subway station, took a train, and then walked another 5 blocks to her home. Several hours later, at 7:59 pm, the patient arrived at the emergency room at the local hospital. It was noted that she had undergone a pregnancy termination 8 hours earlier and she was complaining of severe lower abdominal pain. At 1:09 am on the morning of January 14, the patient was admitted to the hospital and underwent an exploratory laparotomy, uterine curettage, and successful repair of a uterine perforation. She was discharged in stable condition on January 17, 2011.
On January 20 the patient returned to the hospital ER complaining of abdominal pain and vomiting. She was admitted and diagnosed with a postoperative ileus. A nasogastric tube was inserted to decompress her bowel. No surgery was performed. She was in stable condition upon her discharge. Two years later, the patient gave birth to her third child.
The plaintiff’s lawyers alleged that the defendants caused the perforation during the procedure, failed to recognize it intraoperatively, and failed to repair it at the time. They also contended that had the defendants identified the perforation, it could have been repaired laparoscopically, as opposed to via exploratory laparotomy. They also criticized the NP for “failing” to identify and recognize the patient’s postoperative complaints, which the plaintiff claimed were indicative of a perforation.
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The plaintiff testified that after the procedure she did not recall whether anyone checked on her in the recovery room. She got up and went to the bathroom, where she experienced bad cramping and pain and discovered she had bled through the sanitary napkin she had received. She claimed that the nurse told her that she could not go back to where the procedures were performed and that she was cleared for discharge. She acknowledged that the surgeon who performed her surgery told her that she had a perforated uterus from the procedure and that he said, “it’s a risk of the procedure.”
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Codefendant Dr B testified that the procedure was done under sonographic guidance because the patient had 2 prior cesarean deliveries and the sonographic images help to define the anatomy. He further testified that the procedure was performed without any complications and no perforation was observed under sonography.
The doctor further testified that he saw the patient in the recovery room following the surgery before she was discharged and that the patient did not have any unusual complaints. Dr B was unaware of the post-op encounter with the NP but testified that even if he had been made aware of the patient’s complaints, he would not have taken any further steps because these are normal following a D & C. Furthermore, he testified that even had a perforation been diagnosed at that point, the patient would have required hospital admission for surgery to investigate and repair the perforation.
Dr B opined that the patient did not “perforate” due to any inadvertent use of the instruments during the D & C. Rather, it was his belief that the patient had a weakened uterus due to prior cesareans and terminations and that the presence of a fibroid or an adherent omentum (as confirmed by subsequent pathology from the hospital) caused an “opening” in the uterus.
Our expert ob/gyn noted that a perforation during an abortion is a risk of the procedure, occurring in .6% of all terminations. More importantly, this patient previously had 4 terminations and this risk would have been explained to her at each one. Our expert believed that the plaintiff had a slow bleed that eventually led her to the ER 8 hours after the procedure. She felt that there was no delay in treating the plaintiff’s perforation because when she left the defendant’s office, she had at most a slow bleed that allowed her to safely take the 40-minute subway ride home. Because the patient’s vital signs were stable and her complaints common for a D & C, the expert felt it was appropriate for the NP to discharge the patient from the office upon re-evaluation after the procedure.
We moved for dismissal of the case against Dr A (the owner of the practice), the practice itself, and the nursing staff. Our motion was granted and the case dismissed as to our clients. Codefendant Dr B decided to settle the matter at mediation for a little more than litigation costs rather than proceed to trial. ï¼