Mr. Kaplan is a partner at Aaronson, Rappaport, Feinstein & Deutsch, LLP, specializing in medical malpractice defense and healthcare litigation.

Andrew I Kaplan, Esq.

In October 2007, the patient presented to a women’s health center, at which time an intrauterine device (IUD) was placed. In July 2009, the patient returned, requesting that the IUD be removed. On exam, the IUD thread was not seen and, as such, the removal could not be accomplished. Later that month, transvaginal ultrasonography (TVUS) showed that the device was in the uterine cavity, but part of the device appeared to have penetrated the myometrium posteriorly.  

The plaintiff presented to Defendant Hospital emergency department (ED) in August 2009, with complaints of abdominal pain with foul-smelling discharge, vaginal spotting, and fever for three days. TVUS was performed and the IUD was again noted to have the distal end within the posterior myometrium. The IUD had not changed position since the patient’s prior TVUS in July. She was discharged from the ED with one dose of azithromycin and acetaminophen/oxycodone and was scheduled for an appointment at the women’s health center the next morning.

The plaintiff presented to the women’s health center as scheduled and was seen by co-defendant, Dr. A. An IUD removal was scheduled for the following day.  

On August 10, 2009, the patient returned to Defendant Hospital. Per the operative report, two attempts were made to remove the IUD with forceps and an IUD hook, but they were unsuccessful. Subsequently, a hysteroscope was introduced into the uterine cavity and normal saline was used to inflate it. The IUD strings were identified, and the device was removed. Of note, there was a 900-mL normal saline deficit noted at the end of the procedure and the operative report specifically indicates “

suspicion for perforation given the deficit.

Postoperatively, positive abdominal distention was noted, the abdomen was non-tender, and there was no vaginal bleeding. After transfer, the patient’s abdomen was still distended, semi-firm, and there was some vaginal bleeding. At 6 PM, the plaintiff’s hematocrit was 36.5 and her hemoglobin was 12.5. At 6:36 PM the woman was resting in bed and denied pain, shortness of breath, nausea or vomiting. Her abdomen was soft, non-tender, and there were positive bowel sounds. Dr. B noted that the plan was to discharge the patient home on ibuprofen and ciprofloxacin. At 7 PM, there was no vaginal bleeding, the plaintiff had not voided, her pain was 2/10, her oxygen was discontinued, and she was out of bed to a wheelchair. At 7:45 PM, she was discharged with instructions for activity as tolerated. Dr. B instructed the plaintiff to return to the hospital if she experienced fever, chills, abdominal pain, or weakness. An appointment was scheduled for later in August.  

The following day the plaintiff returned to Defendant Hospital with complaints of diffuse abdominal pain, tenderness, decreased bowel sounds, and guarding. On admission, her hemoglobin was 10, hematocrit was 29.9, platelets were 200, and white blood cell count was 11.2. An abdominal computed tomography (CT) scan was performed and the findings were compatible with intraperitoneal rupture of the uterus with free air and a hemoperitoneum seen. Following the CT, the plaintiff was seen by Dr. A at which time there was a discussion about the CT findings and the options of conservative management versus surgical intervention. Dr. A noted that she would proceed with a diagnostic laparoscopy and possible laparotomy. The risks of surgery were discussed.   

Intraoperatively, a clot in the uterine fundus was removed, and a defect, approximately 2 - 3 cm in the uterine fundus and right side of the uterus, was identified. It was then decided to perform a laparotomy. The uterus was exteriorized and repaired. A 5- x 3-cm right ovarian cyst was also identified, and a cystectomy was done without any complications. The next day Dr. A discussed with the patient that the perforation likely happened at the time her IUD was removed, the procedure extended it, and the area clotted, providing a tamponade. There was also a discussion of postponing pregnancy at least one year and then only delivering via cesarean.  

That evening, the patient complained of dizziness and difficulty passing gas, her abdomen was distended, and there was a tympanic note on percussion. The following morning, August 13, the patient’s abdomen was noted to be distended, tympanic, had mild bowel sounds, and there was no pain on pressure and neither guarding nor rebound. One unit of packed red blood cells was administered for symptomatic anemia. The next day  a repeat abdominal/pelvic CT was performed which evidenced repair of the uterus, an ileus, and residual hemoperitoneum. There were no signs of perforation. By the morning of August 15, the plaintiff was noted to be feeling and looking much better, and her abdomen was much less distended, soft, and non-tender, with positive bowel sounds.  

The patient remained at Defendant Hospital three more days. Discharge instructions included a follow-up appointment with Dr. A on September 1, but the plaintiff never returned.

In November 2009, the plaintiff presented to Hospital B’s ED. She complained of vaginal bleeding for the past three weeks and chronic pelvic pain since her Defendant Hospital admission in August. Pelvic ultrasound and TVUS showed that her endometrial cavity was distended with blood and/or exudate. She was diagnosed with pelvic pain and discharged the same day. Short-term follow-up of six weeks was recommended to assess for resolution. 

Three days later, the plaintiff returned to the ED at Hospital B with complaints of lower abdominal/pelvic pain since the previous night with vaginal spotting that started that day. According to the records, she had presented to the gynecology clinic earlier that day; they were unable to remove the blood from the uterus, so she was referred to the ED. 

Four days later, a consent form was signed for a cervical dilation, possible uterine suction/curettage, possible laparoscopy, and possible laparotomy. Risks of the procedure were discussed. Dr. C performed a dilatation and curettage for hematometra (collection of blood in the uterus). The pathology report noted small fragments of superficial endometrium with progesterone effect, stromal breakdown and reactive changes mixed with blood clots. The patient was discharged later that day with prescriptions for ibuprofen for pain and methergine for the bleeding.  

The plaintiff presented on December 15 to the Hospital B gynecology clinic for a follow-up appointment with a complaint of mild uterine/suprapubic tenderness. Oral contraceptives were prescribed for her complaints of vaginal bleeding. 

On January 5, 2010, a pelvic ultrasound showed that the distended endometrial cavity, which was seen on the November ultrasound, had resolved. On January 11 the plaintiff complained of vaginal bleeding for the past six months. Her examination was consistent with pelvic inflammatory disease (PID). Antibiotics for 14 days were prescribed. By January 19, she felt better but still complained of abdominal pain. She was informed that a hysterectomy would be the last alternative for management of her pain.

Ten days later, the plaintiff presented to the ED on referral from the gynecology clinic with complaints of abdominal pain 7/10 and vaginal bleeding. She described intermittent heavy vaginal bleeding and severe abdominal pain since the IUD removal in August 2009. She was admitted for pelvic inflammatory disease (PID) and IV antibiotics were started. She was given acetaminophen/oxycodone for the pain. She expressed a desire for a hysterectomy, but the physicians recommended conservative treatment with antibiotics.

On February 2, the plaintiff plateaued on the antibiotics. She signed a consent form for a diagnostic laparoscopy, diagnostic hysteroscopy, possible lysis of adhesions, possible lysis of synechiae and other indicated surgical procedures. Risks of the procedures were explained. 

The following day, laparoscopy revealed bowel and omental adhesions to the anterior mid-abdomen between the umbilicus and the pelvis. There were also adhesions of the bowel and omentum to the left lateral abdominal wall. The uterus was noted to be within normal limits with mild filmy adhesions to the adnexa. During enterolysis in the area of the left lateral abdominal wall, an incision was made into the peritoneum secondary to dense adhesions of peritoneum to the bowel. During the enterolysis, brisk bleeding was noted, suspected to be from the left epigastric artery. Due to poor visualization the decision was made to convert the procedure to an exploratory laparotomy. The plaintiff was discharged on February 6. 

In April, the plaintiff presented to the ED with lower abdominal pain/cramping. She stated that the pain was similar to the pain she experienced in January but stronger. Despite her complaint of vaginal bleeding since March 25, she stated that the bleeding had now resolved. A CT scan of the abdomen and pelvis showed a small hiatal hernia; a tiny right hepatic dome hypodensity that most likely represented a cyst; and an up to 1.9-cm left ovarian cystic structure that most likely represented a physiologic cyst. The diagnosis was abdominal pain possibly related to recurrence of adhesions. The woman was discharged later that day. 

On April 28, the plaintiff returned to the ED for complaints of vaginal bleeding for one day. She indicated that her last menstrual period (LMP) was on April 5, 2010. She was discharged with a diagnosis of vaginal bleeding. 

Later that year, on December 14, the plaintiff complained of vaginal bleeding since December 3 and pelvic pain. Extended-cycle levonorgestrel and ethinyl estradiol tablets had been prescribed for chronic pelvic pain, but she had stopped taking the medication in November. The assessment was possible PID and chronic pelvic pain with no specific etiology of findings except for adhesions. Ceftriaxone and azithromycin were given. An extensive risk, alternative and benefit conversation was had with the plaintiff regarding a hysterectomy. She was to obtain a second opinion. 

One week later, the woman complained of chronic pelvic pain and the physician noted that the “patient strangely desires [a] hysterectomy.” She was advised against a hysterectomy. She was treated for PID, but it was noted that PID was unlikely the cause of the chronic pain. 

On January 4, 2011, the plaintiff still complained of pain and stated that the bleeding improved. She was admitted for IV antibiotics and again said she desired a hysterectomy. Pelvic ultrasound noted a right adnexal cystic lesion. The woman underwent a laparoscopic hysterectomy, left salpingectomy, and lysis of adhesions on January 10, 2011.

In July 2011, the plaintiff presented to the ER with complaints of right-sided abdominal pain with nausea and dysuria. The pain was 8/10 and morphine was given. She later reported abdominal pain in the right lower quadrant for the past three days, on and off, which became constant the night before. A CT scan of the abdomen and pelvis showed a 4.7-cm right ovarian cystic structure. Pelvic ultrasound showed a 4.1-cm hemorrhagic right ovarian cyst with a small amount of associated hemoperitoneum. The patient was discharged home with pain medication.

The plaintiff alleged a failure to recognize the evidence of uterine perforation at the conclusion of the August 2009 procedure; that Dr. A failed to perform an ultrasound at the conclusion of the August 2009 procedure after the 900-mL fluid deficit was noted; that Dr. A discharged the plaintiff on August 10, 2009, without repairing the uterus; that Dr. A failed to timely repair the plaintiff’s uterus; that there was a failure to timely prescribe/administer antibiotics; a failure to timely perform surgery when the plaintiff was found to have a hemoperitoneum and blood in the abdomen; and that the failure to timely repair the plaintiff’s uterus resulted in the plaintiff having to undergo several surgeries including a hysterectomy. In particular, plaintiff asserted that her multiple surgeries, perforation, and hematoma/bleeds resulted in massive adhesion formation, which contributed to her chronic, unrelenting abdominal pain and discomfort.

The expert on behalf of the hospital felt that the attempt to remove the IUD in office was correct, however, when the attempt was unsuccessful, surgical removal was appropriate. She felt that the perforation was timely suspected/recognized due to the noted fluid deficit. Post-IUD removal, the defendants properly monitored vital signs for indication of a bleed and given that the plaintiff was clinically stable, it was appropriate for her to be discharged with instructions to return to the hospital if she experienced any pain or bleeding. Further, the expert felt that the plaintiff had a non-bleeding perforation that became symptomatic after she was discharged. There was no link, directly or indirectly, between surgical removal of the IUD and the plaintiff’s hysterectomy. In fact, plaintiff did not need a hysterectomy but insisted on one and the diagnosis of adenomyosis on pathology following the hysterectomy and, in retrospect, was the likely cause of the plaintiff’s chronic pelvic pain, heavy bleeding, and formation of adhesions. 

Plaintiff’s counsel argued that Dr. A discharged the plaintiff despite a suspicion of a perforation and that the discharge resulted in the plaintiff developing adhesions, which were the source of her continuing abdominal pain. Dr. A acknowledged that she suspected a perforation post-IUD removal, however, the monitoring post-procedure assured Dr. A that plaintiff was stable and could be discharged. The doctor also acknowledged that blood in the peritoneum could be an irritant and could result in formation of adhesions. Dr. A maintained that it was appropriate to monitor post-IUD removal even in light of a suspected perforation, given that the plaintiff was stable at discharge. In addition, the co-defendant reported that the patient had a number of conditions and procedures unrelated to the IUD removal that could have caused her adhesions. 

Plaintiff’s expert testified on direct examination that Dr. A departed from accepted standards of care by discharging with a suspected perforation without further investigating the status of the perforation. The expert explained that the hysteroscope used for the IUD removal could have been reinserted and then used to repair the perforation. Had Dr. A taken those steps, per plaintiff’s expert, the plaintiff would not have suffered a continuous bleed resulting in a hemoperitoneum and formation of peritoneal adhesions. On cross, he was confronted with prior testimony from a case where he was a defendant and had suspected a uterine perforation and did not use a hysteroscope to investigate or repair a patient’s uterus. The doctor also acknowledged that prior abdominal surgery, a cesarean with a vertical scar, PID, 

, and adenomyosis could all cause adhesions and that this plaintiff had all of those conditions. He acknowledged that one cannot distinguish between which adhesions cause pain and which will not.  

The patient essentially testified that since her IUD removal, she had and continued to have abdominal pain. On cross, she acknowledged that over the past six to seven years despite presenting to Hospital B numerous additional times, she never complained of abdominal pain, did not seek treatment for her abdominal pain, did not request medication for her abdominal pain, and never saw a gastroenterologist or surgeon about her abdominal pain. 

Plaintiff’s counsel asked that the jury return an award of $2.6 million for past pain and suffering and $1.8 million for future pain and suffering. After two days of deliberations, the jury returned a unanimous verdict on behalf of the defendants. 

Articles

Complications following IUD removal were the focus of this lawsuit.

Was this uterine perforation properly managed?

On March 9, at 8:10 AM, the patient presented to OB Triage at the defendant hospital with abdominal and lower back pain at a little over 39 weeks' gestation having an EDC of March 13. She was a 30-year-old gravida 2, and her prior pregnancy reportedly had resulted in a spontaneous abortion. She had received prenatal care at the Hospital's Women's Health Center. She reported uterine contractions beginning on the morning of March 7, leaking fluid from her vagina on the evening of March 8, and was admitted to Labor and Delivery by the defendant attending ob/gyn the morning of the 9th. 

At 5:27 PM, a nursing note reported a vacuum-assisted delivery in response to prolonged deceleration down to 71 bpm for approximately 2 minutes. An infant girl was delivered by the attending physician with assistance by resident physicians. A pediatrician was also present in the Delivery Room. Per the physician's Delivery Note, the patient progressed to full dilatation and then pushed effectively to 2+/3+. There was a fetal bradycardia to the 70s but this responded to scalp stimulation. An outlet vacuum was applied to a right occiput anterior vertex and a midline episiotomy was performed. The anterior and then the posterior shoulders were delivered without complication, although the attending added to the note that there were "3 pulls to delivery." The midline episiotomy and a fourth- degree laceration were repaired by the attending and resident, although no details regarding the technique or sutures used were documented. Per the Labor and Delivery summary, the infant was said to have been delivered by vacuum extraction as well as outlet forceps over a midline episiotomy with the fourth-degree laceration. The infant's Apgars were excellent at 9/9.  

When the plaintiff claimed a botched episiotomy caused her rectovaginal fistula, expert witnesses testified that the complication may have occurred in part because she ignored the ob/gyn's advice. So why was the case settled?

Malpractice alert: Could this fistula have been avoided?

The patient, then 29 years of age, initially presented to the ED of the defendant hospital on August 1 complaining of abdominal discomfort. Her work-up indicated she was pregnant and she was referred to the prenatal clinic.

Dr. "R" saw the patient again on November 12 and noted that she "desires RCS [repeat cesarean section]." By this time, the patient had gone for her ultrasound and her EDC was revised to February 7. She returned to the clinic on December 2 and Dr. "R" noted that he was going to schedule a repeat CD at 39 weeks if she continued on her present course.  If, however, signs and symptoms of preeclampsia developed, then the plan was to do the cesarean at 37 weeks. He continued to follow her on December 16 and December 30.

On January 9, the patient presented to the labor and delivery floor complaining of vomiting, abdominal pains, and body pains. She was placed on a fetal monitor; the fetal heart was reactive and there was no evidence of contractions. The ob team suspected that she had a viral syndrome and was dehydrated. As a result, she was given fluids and discharged. She missed an appointment on January 12 but was subsequently seen on January 16 and had no complaints.

On January 18, she again presented to the L&D floor complaining of uterine contractions since 10:00 AM. The nursing notes indicate that she was admitted at 6:20 PM, that an external fetal monitor was applied, and the fetal heart was in the 140s. At 7:05 PM, a midwife's vaginal examination indicated that she was 1 cm dilated, 100% effaced, and the fetus at –1/0 station. Twenty-five minutes later, the patient was seen by Drs. "S" and "B," who explained the risks and benefits of a trial of labor versus a CD. Apparently at this point in time, the patient had changed her mind and was now requesting a trial of labor. At 9:20 PM, another vaginal exam was performed, revealing no change in her status. As a result, labor warnings were given to the patient by Dr. "B" and she was discharged home. Dr. "B" has an attending note documenting that the patient initially desired an elective repeat CD but was now requesting a trial of labor. Furthermore, her note set out in detail an extensive informed consent in regard to this decision.

The patient returned to the hospital at about 1:25 AM on January 19 complaining of lower abdominal pains since 11:00 PM. She denied any rupture of her membranes and reported positive fetal movement. She was attached to an external fetal monitor, which showed a reactive fetal heart rate. At 1:30 AM, a vaginal examination was performed and she was 3 cm dilated, 90% effaced, and at–3 station. At 2:30 AM, she was seen by Dr. "B," who discussed pain management. A spinal epidural was completed at 3:13 AM and Dr. "B" performed another vaginal examination at 3:30 AM. She found the patient to be 4 cm dilated, 100% effaced, and at–1 station. At 5:20 AM, she had progressed to 5 to 6 cm. However, the fetus remained at–1 station. At 6:45 AM, Dr. "B" re-examined the patient and there appeared to be an arrest of labor. As a result, her membranes were artificially ruptured; the fluid was described as clear. 

Two hours later, at about 8:45 AM, Dr. "F" saw the patient and noted that she had made some progress, dilating to 6 to 7 cm with the fetus at 0 station. Furthermore, during this period of time, the fetal heart tracings were described as reassuring. The next examination by Dr. "F" at 12:15 PM revealed no change. Accordingly, an intrauterine pressure catheter was placed, and at 12:40 PM, oxytocin was started at 1 mµ. This was increased to 3 mµ at 2:00 PM and 4 mµ at 4:00 PM. During this time, the nursing staff made Dr. F aware of variable decelerations down to 80–90s. With this in mind, the patient was placed on her left side and at 2:31 PM, given oxygen. 

At 4:00 PM, the patient had a fever of 100.4º and fetal tachycardia with a baseline of 160 to 170 and accelerations to 200s. Furthermore, variable decelerations were continuing and as before, Dr. "F" was notified. Dr. "F" was at the bedside at 4:10 PM and found the patient was dilated to anterior lip and the fetus was at +1 station. An acetaminophen suppository was given for the fever and in addition, the oxytocin was increased to 5 mµ. At 4:30 PM, positive accelerations to 200s were noted with variable decelerations to 100–140s with contractions. Five minutes later, at 4:35 PM, amnioinfusion was initiated. The nurses continued to describe fetal tachycardia at 4:45 PM and finally, at or about 4:46 PM, a decision was made for a repeat CD. At this point, the oxytocin was turned off and the patient was taken to the delivery room. 

With respect to the delivery, Dr. "F" dictated the following note: 

After initiating amnioinfusion, the fetal heart rate was noted to be in the 180s with good beat-to-beat variability. A decision was then made to after [sic] informed consent was obtained, the patient was taken to the Operating Room at 4:45 PM.... A Pfannenstiel incision was made at 17:05 after the fetal heart was noted to be in the 170s.... The uterus was then incised in a low transverse fashion at 17:12.  After initial attempt to deliver the fetus without success, an attempt was made to push the fetal head upwards vaginally again without success. Noted was marked contraction of the uterus with a tight lower segment band around the fetal neck which prevented us from reaching the fetal head from the abdominal site and which also prevented fetal ascent while pushing from vaginal site. The uterine incision was extended vertically but still no success. Nitroglycerine IV was given and again no success. So a decision was made to incise the uterus vertically downwards...the lower segment was very thick which was consistent with the findings of the 'lower uterine segment band' around the fetal neck. The fetus was then finally delivered and was given to the awaiting pediatricians who immediately started resuscitation of the newborn....

The infant's chart indicated that there was a delay in extracting the infant from the uterus for about 7 minutes.  The note indicates that the obstetric attending advised them that the uterus contracted on the infant and they were unable to get the baby out. The infant's Apgars at birth were 0, 0, 0, 0, 0, 2, at 1, 5, 10, 15, 20, and 25 minutes, respectively. The initial blood pH at 6:15 PM was 6.99 with a base excess of –21. The infant had "profound perinatal asphyxia, severe hypoxic ischemic encephalopathy." From the beginning, the child was noted to be seizing and the prognosis was extremely poor for neurologic function and survival. The medical team discussed a DNR order with the family, as well as the possibility of removing the infant from respiratory support. They consented to the former on January 23. By January 26, neurology reported that the infant had no evidence of cortical function. Despite several discussions with the parents, they were having trouble coming to grips with the situation and indeed, they rescinded the DNR order. By February 4, however, the infant was found to be clinically brain dead and the family eventually agreed to withdraw intensive care. On the evening of February 4, the infant expired. 

When the obstetrician encountered a tight lower uterine segment band around the fetal neck, the complicated delivery that followed eventually led to the baby's demise. Why did the defense settle?

Legally Speaking: Encountering a Bandl's ring

						The patient was then a 36-year-old married, African-American woman who had been treated by the defendant obstetrician/gynecologist for over 20 years. The woman suffered from chronic recurrent uterine fibroids and first presented to the defendant with complaints of fibroids and heavy bleeding in 1981. Two ob/gyns who treated her in the past had suggested hysterectomy, but the defendant physician recommended myomectomy, which was done for the first time in 1981, after a long consent discussion. In 1993, the patient returned once again complaining of fibroids and heavy bleeding for several months, and since the patient said she wanted to eventually have children, preserving her uterus was crucial. The defendant ob/gyn warned her that a second myomectomy would weaken her uterus, which meant that any future babies would have to be delivered via cesarean. The patient agreed to the second procedure nonetheless. 						

, the patient again presented with complaints of painful fibroids. She had undergone a series of hormone treatments in an unsuccessful attempt to help her conceive, and the defendant ob/gyn planned for a third myomectomy at the defendant Hospital Center. The third myomectomy took place on August 6, and according to the operative report, although extensive adhesions were found and dissected, surgery was performed without complications. Postoperatively, her WBC count rose to 19,000, and although she was discharged feeling the need to "pass flatus," she was in good condition. Upon returning home, the patient said she ate soup but later that evening began to experience abdominal swelling, discomfort, nausea, and vomiting. She called the defendant ob/gyn and presented to the emergency department late on the evening of August 8, and was re-admitted early the next day.  

On August 12, the defendant ob/gyn ordered a soapsuds enema, but the RN involved in the patient's care-under the impression that an enema would be contraindicated for a possible small bowel obstruction-objected to carrying out the defendant's orders. As a result, an attending physician, Dr. C, and the aforementioned surgeon Dr. B were consulted, along with the defendant ob/gyn; all three signed off on the order and felt that an enema would not be harmful to the patient under the circumstances. At 1:25 PM on August 12, the enema was administered, and almost immediately thereafter, the patient's condition changed dramatically. Within 4 hours of the administration of the enema, the patient was running a fever of 101.3°F, became diaphoretic, and complained of excruciating abdominal pain. Approximately 9 hours later, she was transferred to the ICU with signs and symptoms suggesting shock. She continued to complain of acute abdominal pain, manifested signs and symptoms of peritonitis, and had produced no urine since the enema was administered. 

On the morning of August 13, the patient was taken to the OR by Dr. B, who located and released the small bowel obstruction, which was in the area of the prior surgical incision. In addition, although there was no compromise to the small bowel, on further exploration, the surgeon found a through-and-through perforation in the sigmoid colon, at the top of the uterus, precisely in the area of the defendant ob/gyn's most recent myomectomy. Dr. B oversewed the hole with no evidence of necrosis, and performed a temporary ileostomy, which was reversed 2 months later, on October 12. The patient by all accounts, did well thereafter. 

After the patient's third myomectomy, she sued, claiming the third surgery should have been an hysterectomy, but the physican successfully defended his actions in court.

Andrew I Kaplan, Esq.

Articles

Was this uterine perforation properly managed?

Malpractice alert: Could this fistula have been avoided?

Legally Speaking: Encountering a Bandl's ring

Legally Speaking: Was this myomectomy botched?