The plaintiff testified that Dr. A advised her that when she started the procedure laparoscopically, they came into contact with numerous adhesions which no longer permitted her to perform the surgery as planned. In addition, as a result of the adhesions, her bowel was nicked and ultimately repaired intraoperatively. Since that surgery, she conceded she no longer experiences any type of urinary complaints. In addition, with respect to the prolapse, the plaintiff also testified that following Dr. A’s surgery in September 2014, she no longer experienced any type of bulging or prolapse. She did testify that she had a brief recurrence in or about April of 2015, however, it self-resolved. With respect to the claim for loss of consortium, she testified that following her surgery with Dr. A, her ability to have a physical relationship with her husband was not affected. It was clear that any significant injury she suffered was related to the stroke she suffered in November of 2015.
Dr. B testified that one of the reasons why he decided to do the modified colpopexy, as opposed to the sacrocolpopexy, was because the plaintiff had diverticular disease. According to Dr. B, the plaintiff had a good postoperative course and as of the last time that he saw her, she had a normal vaginal vault and excellent apical suspension.
Dr. A testified that from the time of their first meeting, the plaintiff was insistent on having a sacrocolpopexy. She nevertheless went through a full presentation of the various options available to the plaintiff, including pelvic floor therapy, placement of a pessary, and expectant management. The plaintiff refused those options. Alternative procedures discussed were colpocleisis; use of vaginal mesh; a vaginal approach using uterosacral ligament suspension; and sacrocolpopexy with mesh.
Upon entering the abdomen, Dr. A testified she encountered dense adhesions and, therefore, she called Colorectal Surgery to assist with the lysis of adhesions. She spent 1.5 hours lysing adhesions. At some point she noted a 3-mm serosal tear in the plaintiff’s bowel. Colorectal Surgery recommended that they convert to an open procedure in order to lyse adhesions and inspect the bowels. Both the serosal tear and the enterotomy were repaired with sutures. She cautioned the patient preoperatively about the risk of adhesions and conversion.
We had expert support from Obstetrics and Gynecology, Urogynecology and Colorectal Surgery as to the indications for surgery, the consent provided, the surgical approach and technique, as well as the conversion to open and repair of enterotomies, which were known risks of the procedure and could not be predicted or prevented by testing preoperatively.
At the close of discovery, we moved for Summary Judgment (dismissal) as to our clients. So did counsel for Dr. B. Interestingly, the plaintiff’s counsel did not oppose our motions with an expert of his own, but instead tried to use our experts against each other to suggest that if sacrocolpopexy was not indicated when Dr. B operated, then it was a departure for Dr. A to perform that procedure. Alternatively, if it was indicated, then Dr. B departed by not performing it during the initial prolapse surgery. In reply, both defendants were able to use their experts to coordinate theories and display to the Court that there was no inherent contradiction between their respective positions. The Court did not accept the plaintiff’s arguments, found that defendants met their burden of proof entitling them to dismissal, and that the plaintiff’s failure to produce an expert affidavit in contravention of defendant’s positions was fatal to their claim.
It can be tricky at times to coordinate defenses amongst codefendants whose treatment occurred at different stages of the patient’s care. Doing so, however, should be the primary objective, as a unified defense prevents the kind of blaming or finger-pointing that can weaken both defenses and lend weight and credibility to a plaintiff’s assertions. Here, both defendants were able to prove that their course of action at the time they undertook to treat the patient was appropriate, based upon not only the exercise of medical judgment, but the particular issues they were faced with respectively. Each physician was able to articulate their rationale for approach and decision-making in a way that enabled their retained experts to support their care, rather than blame the other for complications that proved to be known risks of surgery. Faced with a unified defense, the plaintiff could not find expert support for rebuttal.