Following discovery, the case went to trial. The plaintiff’s gynecology expert stated that an abdominal ultrasound should have been performed when the right ovary was not identified on the initial vaginal ultrasound.
Noting that the right ovary was visualized on the study 3 months later, measuring 7. by x 3.9 cm, with 3 small cysts, it was conceded that immediate surgical intervention was not required. Further, this expert volunteered that the two-year delay in performing surgery did not appreciably impact the patient’s prognosis with a tumor of LMP.
This expert opined that the documentation was lacking. There was inadequate documentation of the preoperative counseling, particularly addressing the probable diagnosis and treatment options. There is no documentation about the possibility of a hysterectomy and BSO, with resultant surgical menopause and the difficulties often encountered in treating related symptoms in younger women. Simply documenting, “Surgery discussed, consents signed,” was deemed wholly inadequate. Further, the patient’s consent did not reflect the possibility of a complete hysterectomy and removal of both ovaries.
The expert testified that controversy exists whether surgical staging is required for LMP tumors. However, with a frozen section revealing a serous tumor of LMP, a right oophorectomy or right salpingo-oophorectomy would have been appropriate and adequate, with staging performed at a later date if necessary. The expert further opined that although it would have been ideal, a gynecologic oncology consultation was not required preoperatively or intraoperatively.
The plaintiff’s expert opined that surgical castration was unwarranted. Before proceeding with surgical castration, the surgeon should have consulted with the patient’s husband regarding the probable diagnosis and immediate treatment options. The expert opined that there was no surgical emergency necessitating removal of the uterus and the remaining tube and ovary. Even with cancer, conservative surgery with staging can be appropriate in a nulliparous patient.
A social worker testified that the patient likely would remain childless. It was highly unlikely that she had the option of adoption, particularly with her relatively recent divorce.
A psychologic expert for the plaintiff testified that despite having premenstrual dysphoric syndrome and long-standing depression, surgery triggered a posttraumatic response that remarkably exacerbated her symptoms.
As a result, her treatment had become much more difficult, resulting in major difficulties with interpersonal relationships, one outcome being the dissolution of her marriage.
The patient testified that she felt a mistake had been made, specifically the performance of the hysterectomy and removal of her “good” ovary.
She wanted to hear an explanation of why things were handled the way they were. She felt there was a complete lack of recognizing the impact that surgery had on her life. She wanted an explanation and an apology. As a result, she was angry and felt betrayed.
The defense’s gynecologic expert stated that although the CA 125 was mildly elevated, it can be elevated in conditions unrelated to malignancies. Thus, gynecologic oncology consultation was not required before or during surgery. The documentation of the preoperative consultation, although brief, memorializes a more extensive discussion. It is not expected that such documentation includes every facet of that discussion.
Further, the operative consent included a statement consenting to indicated procedures, thus covering the performance of the performed surgery. This expert opined that hysterectomy and BSO are perfectly appropriate, as a tumor of low malignant potential can recur and may even progress to more severe disease with metastasis.
Further, acknowledging that surgical menopause in younger women can present unique challenges in managing menopausal symptoms, her physician tried various estrogen formulations and nonhormonal therapies to no avail.
A psychological expert for defense stated that the patient’s preexisting and long-standing depression, which required several changes in her medication, had significant potential to progress even without surgery. It was noted that at a gynecology appointment almost 6 months before the surgery, the patient relayed that there were significant difficulties in her marriage.
Thus, the dissolution of her marriage was a result of long-standing and unresolved issues, rather than the surgery.
After 6 hours of deliberation, the jury found for the plaintiff, awarding $700,000 in damages.
Polling of the jurors following the trial’s conclusion revealed that they placed great credence in the plaintiff’s expert. He conceded some issues while clearly explaining the rationale behind his expressed opinions.
He explained complicated concepts clearly, appeared empathetic, and seemed to “connect” with the jury. Conversely, the defendant was defensive and gave evasive answers to direct questions. Further, the jurors said, the defendant seemed dismissive and lacked empathy.
