Legally Speaking Case hinges on timing of bowel perforation


Did it occur during surgery, or did a later injury lead to it?






Andrew I Kaplan, Esq, is a partner at Aaronson, Rappaport, Feinstein & Deutsch, LLP in New York City, specializing in medical malpractice defense and health care litigation. This case was successfully tried to verdict by his Senior Partner, Jay Rappaport.


A 45-year-old woman was admitted to a hospital on March 29, 2010, with a diagnosis of myoma/menorrhagia. On April 1, 2009, and January 22, 2010, the patient had undergone transvaginal ultrasound at another hospital and at the defendant hospital, respectively. Both of those studies demonstrated multimyomatous uterus. Two exophytic fibroids (broad-based) were near the fundus of the enlarged uterus and 2 intramural fibroids were at the lower uterine segment. The defendant ob/gyn testified that injury to the small bowel was a specific risk of a myomectomy about which the plaintiff was advised prior to surgery. On March 29, 2010, the defendant ob/gyn, along with the chief resident and a PGY-2, performed an abdominal myomectomy on the woman. The operative report indicated that there were no complications during the procedure and that the abdomen was explored more than once before closure.

The first postoperative note at 5:45 pm on March 29, indicated that the patient was afebrile, but her urinary output was only 200 mL over the past 2 hours. (The patient had a Foley catheter inserted in the operating room.) At 6:30 pm, the patient’s temperature was 101°F and the chief resident was notified. A subsequent note by the nursing staff at 9:30 or 9:50 pm notes that the patient was doing well and that her Foley was draining adequate urine. By 1:15 am on March 30, however, a nurse’s note indicates that the patient’s urinary output was only 50 ml since 11:00 pm and her temperature was 101.4°F. The chief resident was notified and indicated that he would be coming to see the patient. The nurse’s note at 2:20 am indicates the patient was reassessed and her temperature was 101.8° F. Urinary output was described as cloudy but the amount was not noted. The chief resident ordered 650 mg Tylenol and a urinalysis and culture.

A progress note at 2 am, presumably by the chief resident, notes that the fever was possibly secondary to hormonal response status post-myomectomy. He spoke with an attending. By 5:00 am the nurses report that the patient’s urinary output was approximately 40 mL from 2 am to 5 am. The chief resident was notified and discussed this with the attending. The decision was to give the patient a bolus of fluid and to replace the Foley catheter.

At 8:20 am the defendant ob/gyn noted that the patient’s fever was 102°F and her pulse was 108. He also found her abdomen to be distended and moderately tense with guarding and mild tenderness. Furthermore, he noted mild-moderate rebound in the upper quadrants. He noted that the patient had decreased urinary output during the night, despite 2000 mL of ringers lactate bolus and at that time, she had only about 50 mL over the last 2 hours. His assessment was “rule out intra-abdominal operative bleeding.” He ordered a stat complete blood count and volume expanders, and her status as NPO with a possible return to the operating room if continued “bleeding suspected.”

At 9:30 am the resident noted that the hematocrit and hemoglobin was acceptable and that the patient still was mildly tachycardic, with a pulse rate of 100 and a temperature of 100.2°F. The patient was discussed with the defendant ob/gyn and the plan was to continue her NPO.

By 11:15 am, a nurse noted that the patient had no urine output. The resident was notified and saw her at 12:15 pm, at which time her abdomen was still noted to be distended with positive rebound and guarding.

At 1:10 pm, the patient complained of feeling bloated and short of breath. Her oxygen saturation was found to be 95% on room air and her pulse rate remained tachycardic at 102. The resident was notified and the patient was sent for a computed tomography (CT) scan of the chest and abdomen. The studies were read by defendant radiologist, who noted that there was a “mild to moderately layering pelvic hemorrhage. No evidence of active extravasation on the single phase post-contrast CT…” When th defendant ob/gyn saw the patient at 7:10 pm, he noted that her abdomen was more distended, very tense, and hard. In addition, her urinary output was still “scant.” He indicated that there was blood in the belly, secondary to postoperative bleed and that it was “unclear if bleeding has stopped.” He noted a plan to repeat the hematocrit and hemoglobin levels.



The resident staff saw the patient on March 31 at 12:50 am and their findings were consistent with those described above. The plan, which was discussed with the chief resident, was to continue monitoring for potential bleeding. At 7 am, the patient had an episode of desaturation down to 82% while walking on room air, but the oxygen saturation came back to 95% at rest with face mask. Furthermore, her abdomen was still distended, her urinary output was noted to be 165 mL over 6 hours, and she remained tachycardic. The incision was described as clean, dry, and intact, with staples in place and no evidence of erythema, induration, and/or drainage. The chief resident noted that he discussed the case with the defendant ob/gyn and it was felt that the patient’s symptoms were likely secondary to third spacing and intravascular depletion. The hematocrit and hemoglobin were noted to be stable and the patient’s white blood cell (WBC) count was normal at 5.2. The patient received Hespan to increase the intravascular depletion.

At 2:55 pm, the defendant ob/gyn noted that the patient looked and felt better. His examination, however, revealed that her abdomen was still tense, distended, and tympanic. Furthermore, the patient’s urinary output remained low and he documented that he believed it was due to third spacing and that the abdominal distention was probably secondary to gas. He ordered an abdominal x-ray and fluids.

An abdominal x-ray was performed and compared with the March 30 CT scan. The radiologist noted “non-specific bowel gas pattern with scattered air-fluid levels and mildly dilated small bowel loops. These findings may be due to a partial bowel obstruction versus developing ileus… An edematous loop of bowel is noted within the right upper abdomen. This is also non-specific and may be seen with ischemic or inflammatory or infectious etiology….” On April 1, the patient’s abdominal symptomology continued, but the gyn resident noted that the urine output appeared to be improving and that a nephrology consult was requested and the recommendations were awaited.

At 7:15 pm on April 1, the patient was seen by the surgical intensive care unit (SICU) attending, who indicated that the patient had a distended abdomen, but the CT scan done earlier “showed no evidence of bowel injury ? hematoma of pelvis.” He suggested repeating the CT scan and transferring the patient to the SICU. When the defendant ob/gyn saw the patient again on April 2, at 8:55 am, he noted that her abdominal signs and symptoms were decreasing, but there was evidence of drainage of serous fluid at the left end of the incision. He also noted that the woman’s lower abdomen was discolored which he felt was probably secondary to blood in the abdominal wall. His plan was to remove the staples, drain the collection, and if the woman’s urinary output continued to improve, to remove the Foley.

The chief resident saw the patient at 11:15 am and noted that foul-smelling fluid was draining from the lateral edge of the incision. The staples were removed and about 150 mL of brown, foul-smelling fluid was drained. It was noted to be subfascial in origin and the fascia was intact upon probing. The fluid was sent for culture and the plan was to get another CT scan.

A second CT scan of the abdomen and pelvis was performed and as before, the studies were read by the defendant radiologist. He described “peripherally enhancing peritoneum in the pelvis, an element of peritonitis is not excluded.” He then indicated that the oral contrast that was given reached the distal small bowel and it did not seem that he described any extravasation of same, which would evidence a perforation.



The patient was placed on antibiotics and continued observation. On April 3 at 7 am, the incision was again open with dark-greenish foul-smelling discharge. There was necrotic tissue on the edge of the wound. The woman’s urinary output also began to drop.

On April 3 at 3:30 pm, another ob/gyn attending was called to see the patient because of concern about the appearance of the woman’s wound. He believed that the patient should be taken to the OR for debridement and notified the defendant ob/gyn. The defendant ob/gyn wrote a note at 4:10 pm indicating that he was called to evaluate the patient in the SICU, after she continued to complain of abdominal pain and drainage of foul-smelling fluid. The defendant ob/gyn believed that she might have necrotic fasciitis/myositis and took the patient to the OR for wound exploration and debridement. Upon opening the fascia “the small bowel was examined and an approximately 0.3 cm hole in the small bowel with some fibrinous exudate was found approximately at the mid-jejunum and the small bowel and the colon was systematically examined, and no evidence of other bowel injuries were found. The abdominal cavity was extensively irrigated and the small bowel perforation was closed.” The patient remained in the hospital until April 9 when she was discharged with antibiotics, a vacuum drain, and instructions to follow up with the defendant ob/gyn.

The plaintiff was admitted to another hospital on March 30, 2012, for repair of a ventral hernia. Upon physical examination, she was noted to have a transverse lower abdominal wound measuring 2 cm x 12 cm without fascia and with visible peristalsis. The patient underwent an exploratory laparotomy and the lysis of adhesions took over an hour. The small intestine was identified directly below the skin scar and the hernia was larger than anticipated. Bilateral myofascial cutaneous advancement flap repair with mesh was performed and a Jackson Pratt (JP) drain was inserted. The method of repair utilized was noted to have a 20%–25% hernia recurrence rate.


The plaintiff claimed injuries including a small bowel perforation requiring extended hospitalization from March 29, 2010 to April 9, 2010; necrotizing fasciitis and myositis; hernia; and hernia repair surgery in March 2012. The plaintiff claimed that the defendant failed to recognize and repair the injury/perforation immediately and call in a surgical/gyn or oncology consult for repair. She also claimed that the defendant failed to properly pack and/or retract the bowel away from the operative field and “in failing to do so … more likely than not poked the scalpel, bovie, and/or retractor into the small bowel and executed an excessive amount of pressure and/or caught/picked up a portion of the small bowel with a needle when suturing during the myomectomy.”

It was also claimed that the defendant failed to understand the significance of the plaintiff’s fever, abdominal distention, rebound, and guarding on postoperative day 1 and deviated by not including small bowel perforation in the differential diagnosis. Also claimed was failure to order oral contrast for the first abdominal CT scan which would have allowed the perforation to be diagnosed; failure to understand the significance of the oral contrast not traversing the entire bowel during the April 2, 2010 CT scan; and failure to order a repeat CT scan when it was noted that the entire bowel was not traversed. The woman also claimed that the defendant failed to recognize and understand that the malodorous fluid leaking under the fascia was due to a small bowel perforation and failed to properly supervise the resident.


At his deposition, the defendant ob/gyn testified that injury to the small bowel was a specific risk of a myomectomy and that the plaintiff was advised of this prior to surgery. He also testified that many of the plaintiff’s postoperative symptoms were readily attributable to a normal postoperative course and that she was being closely followed and evaluated such that her return to the OR occurred in a timely fashion. The defendant testified that when the patient was returned to the OR on April 3, 2010, a small hole was found in the loop of swollen intestine close to the surface of the abdomen up against the abdominal wall. He did not have an opinion regarding the cause of the hole, but he confirmed that it was in the area of the March 29 surgery. The defendant described the intestine as stuck to the inside surface of the area where the abdominal wall incision was and the hole as easily repairable.

He stated that he did not know when the hole occurred, but he assumed that it happened before the April 3 surgery. He opined that the bowel injury was most likely the cause of the patient’s symptoms between March 29 and April 3, as after the hole was repaired, the patient’s condition improved. The doctor felt that the hole was not detected earlier either because there was no hole initially and it developed later or the hole was facing the anterior wall of the abdomen so spillage occurred toward the wall and not into the abdominal cavity. Similarly, the hole was not detected radiographically because there either was no hole or the hole was sealed over by the wall of the abdomen, so air from the hole never went into the abdominal cavity.



The defendant added that the 3-mm hole found on April 3 was in the area of the mid-jejunum and, as such, was in an area that contrast would have reached during the prior CT scans. He testified that if the bowel perforation had been diagnosed and repaired on March 29, 2010, the patient could have avoided her postoperative complications, second surgery, and postoperative need for JP drains and wound vac. However, he did not feel that the bowel perforation could have been diagnosed earlier.

The defendant radiologist testified that the CT scans he interpreted did not show evidence of a small bowel perforation, and that in a patient that is 4 days post-op, with a small bowel perforation one would see bowel content in the pelvis. There was no evidence of a small bowel perforation on the April 2, 2010, abdominal CT as either the perforation was too small to be seen or it was in an area where contrast did not reach.

Our expert radiologist felt the CT scans and abdominal x-ray were correctly read. The wound had not increased from the previous scan. He stated that the 3-mm perforation found at the second surgery was very small and doubted it could have been seen on the CT scans. He added that he did not feel the radiologist had an obligation to state that the contrast did not traverse the bowel and thought that it was irrelevant because most patients postoperatively have an ileus and that was the reason that the contrast was not traversing the bowel. He noted that it could take over 24 hours to traverse the bowel and that is too much radiation to give to the patient by constantly taking images. With a perforation as small as this, it is likely one would not have seen extravasation even if it had traversed the bowel.

Our gynecologic surgery expert felt that the defendants did not depart from the standard of care by conservatively monitoring this patient postoperatively. The patient had many expected postmyomectomy issues including a distended abdomen, fever, and pain. The perforation developed over time, which is why she did not appear acutely ill. The expert felt that the care was appropriate in all respects and that this woman was fortunate that the perforation was found during the same admission and that she did not need a colostomy. Risk of bowel perforation is 1% and she would have needed the T-incision regardless of when the perforation was diagnosed, because the second surgery was exploratory. The 3-mm perforation of the jejunum was small. No dye tests are available for this and the expert thought that the claim that Methylene blue and milk should have been used was without merit. She was not sure that it would have been possible to diagnose the perforation in the jejunum unless it could seen. All abdominal surgeries put the patient at risk for hernias and she would have needed a second surgery regardless, therefore, the risk to the woman was not increased. The ob/gyn surgeon also felt that the plaintiff’s body habitus (overweight) put her at increased risk.



This case was tried over 7 days and focused on the issue of whether a bowel perforation occurred during the surgery on March 29, 2010, and went unrecognized, or whether some injury, such as bruising to the bowel during closure of the fascia, occurred and eventually led to perforation. Our expert stressed that if such an injury had occurred, there would have been signs of it immediately postoperatively, including but not limited to an acute abdomen with rebound, an elevated WBC, and evidence of free air. Furthermore, she testified that if the patient had peritonitis (which would have arisen if the bowel had been perforated), she would have been “very sick,” unable to ambulate, vomiting, and had a high fever.

The plaintiff’s lawyers also called the second surgeon as their witness, which backfired. He testified-contrary to the plaintiff’s expert and consistent with the defendant ob/gyn and our expert-that air, bacteria, and assorted enzymes would be flowing out of the perforation, if one occurred. He emphasized that this material would be an extreme irritant to the abdominal cavity and the patient would have had extreme pain. Just as important, he also indicated that another cause for pain would be an ileus, resulting in abdominal distension. In order to differentiate the 2 problems, a physician would look for rebound. If the patient had a perforation, he explained that there would be rebound and it would continue as long as the hole was open. In this case, the rebound was only found initially (presumably due to blood in the pelvis) and after March 30, no one found any rebound on examination of the plaintiff.

He also agreed that with a hole in the bowel and bacteria leaking out, the patient would quickly develop an infection that would be evidenced by an increasing WBC count. The WBC count in this case was normal through the hospitalization. With a perforation, there would be free air visible in the abdomen on later films, and a flat plate and standing film are the best studies to look for free air. No free air was visible on the KUB films taken on March 31. Finally, he indicated that if an enterotomy was draining for 3 days, one would expect to see fluid and debris in the abdominal cavity. In this case, there was no mention whatsoever of any abnormal fluid in the abdominal cavity, nor was any fluid sent for culture.


Next: The verdict >>


The verdict

After brief deliberation, the jury found there was no evidence that the perforation occurred during the operation and found for the defendants. 



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