The resection was not planned, consented to, or indicated, and this was enough reason to reach a settlement in this case rather than allow a jury to price it.
Mr Kaplan is a partner at Aaronson, Rappaport, Feinstein & Deutsch, LLP, specializing in medical malpractice defense and healthcare litigation. He welcomes feedback on this column via email to firstname.lastname@example.org.
On December 17, 2001, a 52-year-old woman saw Dr. A for a gynecology/oncology consult at the direction of her gynecologist. The patient/plaintiff had been diagnosed with lichen sclerosus years earlier. She reported to Dr. A that her condition had been unresponsive to all previous medical treatment, including antifungal, estrogen, testosterone, corticosteroid, and antibacterial medications. Dr. A performed an exam of the external genitalia and observed whitish discoloration in the anterior vulva area consistent with lichen sclerosus. He also noted small fissures in the discolored area and around the perianal area.
He recommended a trial of clobetasol propionate for 4 weeks and then a re-evaluation.
At a January 3, 2002, follow-up appointment, the plaintiff’s condition had not responded to the clobetasol and she complained of worsening vulvar itching. Dr. A performed a physical exam and observed scratched fissures on the labia minora and majora, as well as white discoloration on the perianal area. On January 14 he performed a simple vulvectomy. Superficial layers of skin were removed from the labia minora, the anterior part of the labia majora, the clitoral hood, and the posterior areas between the introitus and the perianal area. The full thickness of the skin was not excised and Dr. A’s operative report stated that he did not excise the clitoral area.
After surgery, the plaintiff was ambulating and afebrile, and Dr. A noted no complaints from her. At discharge, Dr. A instructed the patient to take sitz baths 3 times a day and avoid exaggerated movements and sexual activity.
On February 28, 2002, the patient saw Dr. A for a follow- up appointment. The plaintiff reported no pain or discharge, nor did she have complaints about her gastrointestinal or genitourinary systems. She was healing well except for small superficial wound suppuration in the posterior fourchette. Because of the suppuration, Dr. A advised the plaintiff to rest her pelvis, and specifically to abstain from sexual activity and avoid touching the area or using tampons. He instructed her to return in 4 weeks but she did not and also missed a June 6, 2002, follow-up appointment.
In the meantime, the woman saw another gynecologist on June 8 and again on June 27. She was treated with metronidazole for “a vaginal problem.”
On June 13, the plaintiff saw Dr. A for a follow-up appointment. She had no itching or bleeding in the perineal area and had no other complaints. Dr. A noted a whitish dry scar superior to the plaintiff’s clitoris, abrasions in the perineal region, and scratch marks along the incision line on the left side of her posterior vulva. He gave her instructions for perineal care and advised her to return in 5 weeks.
The plaintiff returned to Dr. A on September 26, 2002, and complained of vulvar itching. Dr. A observed that the lichen sclerosus had returned and covered the anterior vulva including the clitoral hood, the labia minora, and the posterior fourchette. He prescribed testosterone gel, advised the plaintiff to return in 4 weeks, and noted that if the cream failed, a surgical resection would be considered.
On November 7, 2002, the plaintiff returned to Dr. A and reported that she had not used the testosterone cream that he had prescribed. Dr. A examined the plaintiff and observed the same areas of lichen sclerosus and a rectocele in the front wall of the rectum into the vagina. His plan for surgical correction included a second partial/ simple vulvectomy and a posterior repair but no work on the rectocele. He later testified that he wanted to take care of the lichen first.
The plaintiff returned to Dr. A on February 14, 2003, complaining of itching. An exam revealed that the lichen sclerosus had returned. On February 24, Dr. A performed a second simple vulvectomy and laser vaporization of the clitoral hood and the affected perianal area. He removed a superficial layer of skin from the clitoral hood but left the rest of the clitoral hood and the clitoris intact. The final pathology report indicates advanced lichen sclerosus.
On May 5, 2003, Dr. A saw the plaintiff again and she complained of itching around the clitoris. An exam revealed lichen sclerosus in the anterior vulva area, anterior to the clitoral hood, extending to the labia minora on both sides and a small area on the posterior vulva on the left side. A small area with firm nodules at the introitus closest to the perineum did not constitute lichen sclerosus.
Dr. A later testified that he planned for a wide local excision because the lesions observed on May 5 were smaller and localized and did not necessitate taking out a large section of vulvar skin. He also testified that if the clitoris were going to be removed, it would have been mentioned in his notes as a resection of the organ, and not merely a local excision of the skin.
Dr. A’s operative report from the radical vulvectomy he performed on May 19, 2003, reads “the decision was made to resect the clitoris together with the gross lesion.” He later testified, however, that he did not resect the clitoris and that the statement in the report was a dictation error. Had he removed the clitoris, he said, he would have dictated it in the operative procedure note as a resection of the clitoris, and it would have been written in both his operative note and the pathology report.
When Dr. A saw the plaintiff for the final time on June 27, 2003, she complained of itching at the perineal body. Dr. A observed a lesion of persistent lichen sclerosus in the perineal area. He prescribed clobetasol propionate for 2 weeks and advised the plaintiff to return in 4 weeks. He also noted that a surgical re-excision would be necessary. Subsequent records reveal that the plaintiff’s lichen sclerosus returned.
The plaintiff alleged that Dr. A failed to obtain proper informed consent and failed to use alternate medical therapies- such as retinoids, cryotherapy, photodynamic therapy, and topical macrolide immunosuppressants-instead of surgery.
The plaintiff’s lawyers also contended that Dr. A unskillfully and unnecessarily performed multiple vulvar surgeries. They further argued that Dr. A inadvertently and/or negligently removed the clitoris and that the surgeries resulted in a “fused vagina.”
Dr. A refuted the suggestion that he removed the clitoris, and neither the initial physical examination nor the subsequent treatment records definitively reported that the entire clitoris had been removed. However, physical exam by the plaintiff’s expert physician reported the absence of a clitoris, extreme narrowing of the vaginal opening, and thinning and hypopigmentation of the vulva and perineum.
Our expert ob/gyn felt that the case could not be defended because there was no indication for surgical treatment in the absence of vulvar cancer. Lichen sclerosus is known to recur, and excision will not prevent recurrence, our physician noted. Our dermatology expert expressed the same opinion.
Finally, upon review of the pathology slides, it was determined that the clitoris had in fact been removed. At no time did the patient give consent for such an excision.
Before this case went to trial it was settled for $2 million.
This case is more about poor judgment and surgical inadvertence than about a charting error. Dr. A should have carefully read the operative part of the plaintiff’s medical records and corrected the section that suggested that the clitoris had been removed if that was not what he had done or intended. But that was exactly what had occurred.
The resection was not planned, consented to, or indicated, and this was enough reason to reach a settlement in this case rather than allow a jury to price it. Several of the experts we retained led us to believe that it would be better to resolve this case, even though one expert was willing to accept Dr. A’s actions as a reasonable-if not entirely prudent-exercise of surgical judgment.
Convincing a jury that surgery was appropriate and that the results did not indicate negligence would have been difficult.