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Mr. Kaplan is a partner at Aaronson, Rappaport, Feinstein & Deutsch, LLP, specializing in medical malpractice defense and healthcare litigation.
Informed consent and surgical route are the main focuses of this case.
The patient had a significant past medical history, including a gastric banding procedure for morbid obesity (body mass index 44), and admission for laparoscopic removal of the lap band when it “slipped.” Her various clinic records-primarily in gynecology/urology-documented a history of fibroid uterus with menorrhagia and an initial disinclination to undergo surgery to deal with it.
Notes about surgery for the woman’s fibroids indicate that the procedure was scheduled for February 7 and express concern about “risk of operation.” On February 7, the patient was admitted to defendant hospital for the surgery, which was documented as having occurred from 10:50 a.m. to 12:16 p.m. The residents who assisted Defendant attending were Drs. A and B. A vaginal hysterectomy was performed, and the woman’s right fallopian tube and right ovary were removed. Defendant attending indicated she could not completely visualize the left fallopian tube due to its adherence to the bowel.
After surgery, the patient was admitted to the Post-Anesthesia Care Unit (PACU), where she stayed until approximately 4:30 p.m. At that time, her blood pressure (BP) was 95/62, pulse 72. The hemoglobin was 7.2 and the hematocrit was 25.2, both of which were consistent with the admission values. In addition, it was noted that “GYN aware and stated patient can be discharged to home,” and a correlating PACU nursing note entry timed at 4:30 p.m. stated that the patient was sleeping on and off, in very little pain, with no bleeding noted, that the complete blood count results were “seen by GYN” and that Drs. A and B stated that the patient could be discharged. The surgical specimens sent to pathology were fibroid uterus and cervix together with a right fallopian tube, although there was no mention of the ovary. The patient was instructed to present to the clinic within 2 weeks or to the Emergency Department if she had increased bleeding, fever, severe and/or persistent pain, and other related symptomatology.
On February 21 at 8:18 a.m., the woman presented to the Defendant hospital with a complaint of abdominal pain, swelling, and diarrhea for 1 day, and a history of “two weeks of fever and chills.” Vital signs revealed a BP of 106/94, pulse 102, and a temperature 98.5°F. Two hours later, the patient’s BP was 88/54, pulse 89, and temperature 98.3°F. An abdominal x-ray documented no free air under the diaphragm and a follow-up computed tomography (CT) scan was scheduled. Laboratory studies at that point were remarkable for a white blood cell (WBC) count of 16.4. The patient was admitted to the service of the OB/GYN attending, Dr. C.
A PGY-2 GYN admission note documented that the patient had 2 weeks of “subjective” fevers, chills, and abdominal pain, as well as diarrhea. The progress note referred to the CT findings, which documented an “ill-defined collection of extra luminal gas pockets,” and an official report stated that the CT findings are “most concerning for abscess formation” without any suspicion of viscus perforation. Resident B countersigned the PGY-2 note and on the same page entered her own note stating, among other things, that the patient was now presenting with a “cuff abscess,” and that treatment would be intravenous antibiotics, which according to a February 22 PGY-3 OB/GYN note consisted specifically of vancomycin, cefepime, and metronidazole. The note also indicated that the patient’s pain was well controlled, she did not complain of bloating, and although she had fevers, there were no chills, nausea or vomiting. She was noted to be tachycardic at that time. Her wound culture had grown gram-negative bacteria.
A nursing note thereafter documented that the patient’s temperature was 100.3°F and she was complaining of pelvic discomfort. The PGY-3’s note 13 hours later stated that the patient’s pain was well controlled, her abdomen was soft and mildly distended with bowel sounds present and, WBC 16.0, and said that this is an “improving vaginal cuff abscess, with the patient still on antibiotic coverage.” A February 24 note by resident Dr. A stated that the woman’s pain was controlled, she was tolerating an oral diet, and she did not have fever, chills, night sweats, or peritoneal signs. Dr. A also noted decreased vaginal discharge and indicated that antibiotic coverage with vancomycin, cefepime, and metronidazole was to be continued. In the Assessment & Plan, Dr. A indicated “possible CT with contrast.” An “addendum” made by the PGY-4 approximately 1½ hours later indicated that the patient was still complaining of abdominal pain and that vaginal discharge was present, although she did not have a fever.
The Defendant attending was consulted by phone and the plan discussed was a CT of the woman’s pelvis and abdomen, with a possible trip to the operating room to “open cuff and drain abscess.” The next significant note was made retrospectively at 6:00 p.m. by the Defendant. In it, previous events were described, including the findings of the aforementioned CT scan, and it stated that the patient did well after the February 7 surgery until prior to the emergent February 21 presentation. Defendant attending’s note referred to CT-documented free air and an increase in the size of the cuff abscess. The official report largely correlated with Defendant attending’s progress note reference, indicating that the large amount of loculated ascites of the abdomen and pelvis had markedly increased in size and that the extraluminal gas had been present and persistent since the February 21 scan, and was now suspicious for a perforated viscus.
Defendant attending went on to note that she was calling for a general surgery consult to rule out occult bowel perforation and that she was awaiting the consult and entertaining the possibility of an exploratory laparotomy. The consult in question was performed by Dr. D, whose consult said the purpose was to rule out a perforated viscus. The note also indicated that the patient had developed progressive diffuse abdominal pain, nausea, vomiting, and subjective fevers over the past 2 weeks at home. Dr. D also documented that the patient was presenting with intra-abdominal ascites, and free air, all of which was concerning for a perforated viscus and bowel injury, and that a plan was being formulated to perform exploratory laparotomy. The exploratory laparotomy was performed by Defendant attending and general surgeon Dr. E as primary physicians. According to the handwritten brief operative note, the preoperative diagnosis was perforated viscus and the postoperative diagnosis was sigmoid colon perforation with purulent peritonitis and abscess, with specific notation of a small perforation along the anterior aspect of the distal sigmoid. After initial intraoperative examination of the small bowel, further “exploration” revealed that there was a “small necrotic-appearing perforation in the lateral aspect of the rectosigmoid colon.” Repair of the perforation involved resection of the rectosigmoid colon and formation of a colostomy.
The patient was intubated in the intensive care unit for 24 hours and extubated on February 25. During the remainder of her hospitalization she received multiple consults, specifically by the medicine service, the infectious disease service, nutrition, general surgery, and gynecology. On March 3 an interventional radiology procedure was done to drain the woman’s abscess, and on March 10 there was a note concerning a proposed interventional radiology procedure, although it indicated that there was “nothing to drain. A note made on March 10, stated that “abscesses at this time overall are decreased,” but “not resolved.” The patient was discharged that day from the Defendant hospital site with Visiting Nurse Service arrangements having been made and instructions including ostomy management. On September 8, her colostomy was reversed and during that procedure, her left fallopian tube and ovary also were removed, without the intervention of Defendant attending or anyone from the GYN service.
Plaintiff alleged that negligent attempts to remove fibroids and perform a vaginal hysterectomy resulted in perforation of the patient’s sigmoid colon, requiring surgical repair and a temporary colostomy and causing persistent pain and suffering. Plaintiff also alleged a delay in diagnosis and failure to timely consult with proper specialists such as surgery and infectious disease. A claim also was made of pain and suffering as well as scarring, sepsis, post-traumatic stress disorder and diminished sexual and intimate relations.
Our urogynecology expert opined that the hysterectomy was indicated based on the patient’s history of fibroid uterus, menorrhagia, and resultant anemia. A vaginal approach was proper given her prior surgical history. The expert also opined that there was no evidence of a bowel perforation prior to discharge from the hospital after the surgery. He suggested that the perforation was delayed and likely a result of deserosilization.
At her deposition, the patient claimed that she had a “tumor” from the colostomy incision and could not work secondary to pain. She testified that she was in pain from the time of the February 7 surgery through her return to the hospital on February 21. She stated her colon was perforated in three places and she was distraught at needing a colostomy. She required home care for a month after discharge and “went into a depression” because of the colostomy. It was discovered that the patient had been suffering from thyroid cancer since 2016. She further could not substantiate a lost earnings claim with any documentation.
The patient’s attorneys interposed a $2 million demand for settlement. They asserted through their trial experts that, in addition to the prior allegations of surgical negligence and delay, defendants failed to use less invasive treatments such as hormone therapy, hysteroscopy or endometrial ablation. Our expert countered that the woman’s fibroid was too large for alternative measures and neither hormones nor ablation would provide the definitive treatment the patient desired. He opined that consent was properly obtained and that the surgery itself was properly performed without clinical or radiographic evidence of a perforation at the time of the operation. The issues that went to the jury involved the propriety of the informed consent and the performance of the hysterectomy itself. After brief deliberation, a verdict was rendered in favor of the defendants.