Legally Speaking: Unrecognized bowel injury during surgery: How important are your attorney and the expert witnesses?

May 14, 2020
James M. Shwayder, MD, JD
James M. Shwayder, MD, JD

The outcome in this case underscores the importance of excellent legal representation and scrupulous expert witness selection.

A 39-year-old G3P2012 presented to the Emergency Department (ED) with a complaint of 2 weeks of worsening low back and abdominal pain and more recent-onset nausea and vomiting. She had been seen in an urgent care center 4 days earlier with lower back pain, which was treated with naproxen.

Her history included hypertension, which was well-controlled with a single medication, bilateral tubal ligation, subsequent ruptured ectopic pregnancy, and exploratory laparotomy with extensive adhesiolysis, performed for pelvic pain.

The patient was afebrile, with stable vital signs. She had a tender, palpable mass extending into the lower abdomen from the pelvis. Pelvic ultrasound revealed a 14-cm left ovarian cyst with multiple septa and possible hemorrhage. A review of her records revealed a similar-sized mass on an ultrasound performed 5 years earlier. The only laboratory abnormality was an elevated white blood cell (WBC) count of 15,100 cells/µL.

Surgery was pursued on an urgent basis. A laparotomy was performed due to the size of the mass and the extensive adhesions documented on prior laparotomy. A large, cystic pelvic mass was encountered, but it could not be completely removed because of extensive, dense adhesions. Therefore, it was aspirated, returning 750 cc of serosanguinous fluid. A portion of the cyst wall was excised and sent to pathology. A peritoneal drain was placed

On postoperative Day 1, the patient had a temperature of 99.2º F; blood pressure 162/76 mmHg; pulse 108 beats per minute (bpm), and respirations 15 per minute. Her abdomen was soft, with bowel sounds present. The peritoneal drain had a total of 115 cc of serous fluid over 24 hours, with no drainage over the most recent 8 hours.

Urine output since the surgery was 1450 cc. The patient’s hemoglobin and hematocrit were stable at 9.8 g/dL and 29%, respectively, with a WBC of 12,400/µL. On postoperative Day 2, her temperature was 98.5º F, with a maximum temperature of 101º F over the past 24 hours. Her blood pressure was 144/82, with a pulse of 102 bpm. The intraperitoneal drain had 40 cc of serous drainage over 24 hours.

The patient complained of increasing pain, nausea, and epigastric pain. Examination revealed a distended abdomen, with no bowel sounds identified. An abdominal x-ray revealed an ileus. A nasogastric tube was placed, offering some relief.

On the morning of postoperative Day 3, the patient complained of increasing pain, despite passing some flatus. Her vital signs were essentially unchanged, with a temperature of 98.2º F, BP = 145/80, pulse = 100 bpm, and respirations of 22 per minute. The peritoneal drain had 50 cc of serous drainage over 24 hours. The woman’s abdomen was soft but distended, with some sluggish bowel sounds.

Later in the morning on postoperative Day 3, the pathologist personally notified the gynecologist that the biopsy specimen was consistent with a ruptured colonic diverticulum with adjacent abscess and smooth muscle with associated colonic mucosa. A surgical consult was obtained, and an abdominal computed tomography (CT) scan revealed a partial small bowel obstruction, an amorphous 4 x 6-cm left-sided pelvic mass containing fluid and gas, with possible diverticular disease.

The patient underwent surgical exploration with findings of a large, inflammatory mass encompassing the entire left side of the pelvis. There was a 1-cm hole found in the lateral portion of the sigmoid colon, as well as a residual ovarian cyst, densely adherent to the surrounding structures. Neither the left ovary nor the ovarian cyst could be excised in total; thus, the ovarian cyst was aspirated and biopsied.

The surgeon performed a segmental sigmoid colectomy and created a colostomy. During a 2-month postoperative course, complications included a small bowel obstruction, with multiple surgeries. Ultimately, the colostomy was reversed months later.

The patient filed a suit against the gynecologist, alleging misdiagnosis and negligently performed surgery.

At trial, the plaintiff’s experts included a gynecologist, who opined that the preoperative work-up was incomplete and should have included a pelvic exam and a CT scan, which would have established the diagnosis of a diverticular abscess. The elevated WBC count should have alerted the gynecologist to a potential infectious process, warranting further work-up prior to surgery.

Further, this expert testified that the operating gynecologist breached the standard of care by failing to properly identify the anatomic structures before excising tissue. The failure to recognize the bowel perforation and inability to remove the ovarian cyst resulted in major postoperative complications and multiple surgical procedures.

The plaintiff’s surgical expert echoed this opinion, further stating that the ultrasound did not demonstrate how much colon or rectum was involved, nor the location of any potential anastomosis or colostomy, precluding an appropriate preoperative informed consent. In addition, emergent surgery was not required, with better management being the placement of a percutaneous drain and antibiotics.

A general surgeon should have been consulted to establish the correct diagnosis, prior to surgical intervention. As a result of the complications and multiple surgeries, the patient is at risk for additional adhesion formation, bowel obstruction, and need for future surgery. Neither plaintiff’s expert was critical of the postoperative care.

Defense experts, including a gynecologist and general surgeon, testified that both the ED physician and the treating gynecologist thought the mass was ovarian in origin, supported by the abdominal and pelvic ultrasound. Further, the radiologist did not recommend a CT scan to further clarify the sonographic findings. The patient had no history of diverticular disease or long-term bowel-related symptoms.

Thus, a diverticular abscess was unlikely. Thus, surgical consultation was not required before proceeding with surgery, which was a reasonable option in management. For further support, a defense medical expert testified that diverticular disease is uncommon in young individuals, again making the diagnosis of a diverticular abscess very unlikely. The elevated WBC could be consistent with either torsion or partial rupture of the ovarian cyst.

The defense experts testified that the large mass encountered at surgery was consistent with the preoperative diagnosis of an ovarian cystic mass. The markedly distorted anatomy and inability to excise the ovarian mass completely rendered aspiration and biopsy an appropriate management option. Postoperative management was appropriate, with a surgical consultation obtained in a timely manner when the pathology findings were known.

It was further noted that, at surgical re-exploration, the operating surgeons were not able to remove the ovarian cyst or ovary, and therefore pursued aspiration and biopsy. Regarding the potential for future surgery due to abdominal adhesions, the defense experts testified that the patient had significant adhesions prior to the incident surgery, even requiring a prior exploratory laparotomy and extensive adhesiolysis. Thus, the patient was already at risk for future surgical procedures due to the adhesive disease

After an 8-hour deliberation, the jury return a defense verdict.

Analysis

Ostensibly, this case appeared to be a certain victory for the plaintiff. The ultimate result, a defense verdict, underscores the importance of excellent legal representation and the critical nature of expert witness selection, not only for their credibility, but also for their ability to engage the jury.

The defendant was prepared to explain the thought process underlying the probable diagnosis, the decision for surgery, and the management decisions during the incident surgery. Further, the defendant clearly explained the sequence of findings in the postoperative period and the associated decision processes.

The plaintiff’s experts were somewhat dogmatic in their opinions, rejecting the value of ultrasound and even the probability of the preoperative diagnosis of an ovarian cyst. Further, they dismissed that there are multiple approaches to management, particularly when unexpected findings, such as extensive adhesions, are encountered.

Contrasting this were the defense experts who discussed the value of various diagnostic modalities and the reasoning behind selecting specific modalities, such as ultrasound, CT, and magnetic resonance imaging. They supported the preoperative diagnosis of a large ovarian cyst. They expressed the difficult decisions one makes when encountering unexpected findings, which often lead to alternative treatment options.

The plaintiff’s experts seemed somewhat aloof and tended to “speak above the jury,” rather than at a level understood by the jury. In contrast, the defense experts were engaging and explained complex medical terms and decisions in simple terms, almost teaching the jury.

As a result, the defense opinions had greater impact and influence on the jury. The defense counsel was credited for excellent preparation of all defense witnesses for trial testimony. The selection of an excellent attorney and expert witnesses definitely impact the ultimate outcome of a case.