Was it an infection? A jury decides


A case hinges on whether a surgical complication was properly managed.




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. 


On May 14, 2010, a 41-year-old woman was admitted to a hospital's ambulatory care center by a private attending gynecologist for a D&C, saline hysteroscopy, and resection of a submucosal myoma. The patient had a history of 2 prior cesarean deliveries, a right ovarian cystectomy, and ventral hernia repair. The gynecologist was assisted by an ob/gyn chief resident who had discovered the patient’s 1.4-cm endometrial lesion during a recent evaluation for menometrorrhagia.

The patient was taken to the operating room and placed under general anesthesia via LMA. Mannitol solution was infused to dilate the uterus for evaluation. After the hysteroscope was inserted, a probable fundal submucosal myoma was visualized. The patient was dilated to allow for insertion of the resectoscope into the uterine cavity. A myoma measuring 1.5 x 1 cm was resected in 2 parts and retrieved for pathology. A mannitol deficiency of 950 ccs was noted and the suspicion was potential uterine perforation as the cause. Upon reinserting the resectoscope, a small 1- to 2-mm fundal perforation was identified. There was no active bleeding from the site. All instrumentation was removed and the codefendant ob/gyn observed the patient intraoperatively for approximately 10 minutes to make sure there was no excess vaginal bleeding. The procedure was then terminated. The defendant ob/gyn decided to admit the patient for observation overnight rather than repair the uterine perforation intraoperatively or obtain surgical consultation.

In his dictated operative note, the codefendant ob/gyn wrote: “…patient was being admitted for observation with Foley catheter that was inserted. Strict I’s and O’s, CBC and electrolytes to be monitored closely throughout the night and decision about further procedures will be determined based on clinical findings. Because of the patient’s previous surgical history, laparotomy as opposed to laparoscopy will be required if clinically necessary.” A mannitol deficiency of 950 ccs was noted. Intravenous (IV) Kefzol was infused intraoperatively. Pathology confirmed a submucosal leiomyoma with underlying muscle.


At 8 PM on the day of surgery, a nursing note documented guarding and pain on movement, which was consistent with local peritonitis. The patient’s white blood cell (WBC) count spiked to 16.90 (nl: 4.0–10.6) in the 8 PM labs. The plaintiff was receiving IV fluids at a rate of 150 ccs per hour and her urinary output was decreasing. At 12:30 AM on May 15, the patient reported pain of 10 out of 10 and repeat complete blood counts (CBCs) were done at 12:09 AM, 3:08 AM, and 6:42 AM; the WBC counts were 5.69, 3.01, and 3.54 respectively. In the early morning hours the plaintiff was described as tachypneic and her urine output was still decreasing. Her abdomen was described as “hard.” She was prescribed toradol for abdominal pain and given fluid boluses. By 6 AM the patient was suffering tachycardia and hypotension. Notes reflected that the codefendant ob/gyn was made aware of all findings overnight and directed continued observation.



At 8:30 AM, the chief resident ob/gyn saw the patient and suspected “likely bowel perforation with abdominal ascites secondary to mannitol solution.” The codefendant ob/gyn was contacted about the need for exploratory surgery and the on-call attending obstetrician also was contacted because the codefendant ob/gyn did not have privileges for “major GYN surgery.” The chief resident ob/gyn contacted general surgery for consultation for possible bowel perforation and a plan for reoperation with exploration. The on-call attending obstetrician wrote a “GYN attending note” at 9:15 AM on May 15 that stated: “Called by resident to surgically manage patient’s status-post D&C hysteroscopy resectoscope with perforation and mannitol fluid deficit of approximately 950 ccs. Patient with increased abdominal distension and decreased urine output. Blood pressure 97/60, pulse 120, hematocrit 36, white blood count 5.7, afebrile. Called [codefendant ob/gyn] and informed him to meet me at hospital to evaluate this patient. Also contact surgical consult for possible surgical/bowel exploration. Operating room notified of case.”

A general surgery consultation was performed between 10:30 AM and 11:30 AM by the codefendant general surgeon. The brief surgical consultation note documented that the patient’s abdomen was “distended, tender and silent.” His impression was peritonitis and his plan was to perform exploratory laparotomy and possible colostomy. That was discussed in detail with the patient, who agreed with the plan. At 11:30 AM the on-call attending obstetrician penned another progress note stating that the patient was examined and evaluated by the codefendant ob/gyn and the codefendant general surgeon and all agreed on the need for exploratory laparotomy, possible total abdominal hysterectomy (TAH)/SHO, possible bowel resection, and colostomy. The surgery started at 12:25 PM and was completed at 2:23 PM. The intraoperative nursing record described the procedure as exploratory laparotomy with small bowel resection and primary anastomosis and lyses of adhesion. The anesthesia record described the procedure as exploratory laparotomy and repair of small bowel perforation. The anesthesia record indicated that 1 g of the antibiotic Cefotetan was administered IV 7 minutes before the skin incision. Exploration of the small bowel by the codefendant general surgeon revealed a 1000-cc hemoperitoneum and a mesenteric injury at one site of the small bowel that did not compromise the small bowel, and a separate small bowel perforation (approximately 1 cm) exuding greenish bilious material. The codefendant general surgeon resected the small bowel where the perforation of the mesenteric border was found. He performed a primary anastomosis and was able to avoid an ileostomy. The peritoneum was irrigated with saline solution.

The on-call attending obstetrician stated in her operative note that upon exploration of the abdomen and pelvis, a uterine perforation was noted in the midline posterior aspect of the uterus. The perforated site was sealed with a hematoma that was not actively bleeding. Palpation in the cul-de-sac area revealed some free green bilious material. At that point, the codefendant surgeon stepped in and took over the case. The on-call attending obstetrician did not see the patient postoperatively and did not author any further notes in the patient’s chart. The on-call attending obstetrician and the codefendant general surgeon agreed that surgery should follow the patient post-op. The codefendant ob/gyn rounded on the patient almost every day for the remainder of her admission. The codefendant surgeon did not place the patient on antibiotics postoperatively.

On May 19, the patient was transferred to the Pulmonary Care Unit because of shortness of breath, low urine output, abdominal pain, and distension. An echocardiogram ruled out any possible cardiac etiology for the pleural effusion. The woman’s condition was stabilized and she was transferred back to the floor on May 21. On May 27, a computed tomography (CT) scan of the abdomen demonstrated worsening ascites and “new increased enhancement of peritoneal reflections representing peritonitis, likely infectious in origin.” The report also stated that there were “no well-formed fluid collections to suggest abscess formation.” On May 28, the plaintiff underwent CT-guided drainage of approximately 120 cc of pelvic fluid. Microbiology determined that the fluid was sterile with no growth documented. Antibiotics were never ordered and Infectious Diseases was never consulted. The plaintiff was discharged home on May 29 by the codefendant general surgeon. The patient did not spike a fever or have an elevated WBC.


The plaintiff was readmitted to the codefendant general surgeon’s service at defendant hospital on May 31 with a chief complaint of back and abdominal pain. The admitting diagnosis was “rule out pelvic abscess,” and if possible, interventional radiology drainage. A CT of the abdomen with contrast was performed. The impression was an interval development of 2 discrete abscesses in the right lower quadrant and cul de sac with increased moderate bilateral pleural effusions. Surgery A team wrote an addendum note documenting a conversation with Interventional Radiology regarding the collection seen on the CT scan. According to Interventional Radiology, the collections were “smaller than previous aspiration of 150 ccs” with negative culture x 48 hours. The patient was afebrile with no elevation of WBC and Interventional Radiology recommended no drainage at that time.

Medications included IV Zosyn (started this admission) for 4 days, Effexor, heparin, and Dilaudid PRN. The assessment and plan by pulmonology was: “bilateral pleural effusions likely sympathetic effusion from pelvic abscesses. Continue IV Zosyn and suspect pleural effusion will resolve/improve with treatment of pelvic process. Recommend periodic chest x-ray follow up.” The findings, assessment, and plan were discussed with the codefendant general surgeon. On June 5 the plaintiff was discharged home by the codefendant general surgeon. In that admission, the patient’s initial report of fever at home was described as subjective and throughout that admission, she remained afebrile. Her WBC remained within the normal range.



On June 6 the plaintiff presented to nonparty hospital’s emergency room. and reported continued pain in her abdominal area and fever. The patient was admitted with a diagnosis of abdominal pain and intra-abdominal abscess. She had no fever. A CT scan was recommended. A chest CT showed bilateral effusions, more on the right side than on the left. A CT scan of the abdomen and pelvis showed a pelvic fluid collection consistent with an abscess and loculated pleural effusions. After the chest CT came back with the pleural effusions, a Pulmonology consult stated that the pleural effusions were likely reactive to the intra-abdominal abscess. On June 7 the plaintiff agreed to have a thoracentesis. Infectious Disease was consulted and indicated that “the patient is without fever, possible infection, pelvic collection on CT, collection not easily accessible to drainage. Before we initiate antibiotics, will await impact of thoracentesis.” Thoracentesis was performed and was negative for any malignancy, fungus, or bacteria. Over the next few days, the size of the patient’s pelvic collection decreased, as did the right pleural effusion, and the left pleural effusion was documented as persistently small. On June 9 a consultation with Pulmonary indicated that the exudate from the right thoracentesis was likely not an infection, but secondary to possible inflammation. It was noted that the patient was stable, off antibiotics, and likely would not need intervention for the pelvic collection. On June 10 an Infectious Disease consult stated “no evidence to suggest infection, has been afebrile also for 6 days and the CT shows improvement. No need for antibiotics at present.” A consult the next day indicated “no indication for antibiotics. Shortness of breath has improved. Patient is still without fever.” The patient was discharged home on June 12.


The plaintiffs alleged that the defendant ob/gyn was negligent in the performance of the May 15, 2010 surgery, causing uterine and bowel perforation, and failed to recognize and repair the perforations intraoperatively. They alleged that the defendant ob/gyn delayed in obtaining surgical consultation overnight and that led to pain, suffering, infection, and adhesion formation. They alleged that the codefendant surgeon failed to intraoperatively irrigate with antibiotic solution; failed to culture the green bilious peritoneal contents; failed to place the patient on antibiotics post-op; failed to consult with an infectious disease specialist, and failed to earlier arrange for drainage of the patient’s pelvic collections. As a result, it was alleged that the patient suffered from an undiagnosed infection that led to abscess formation, pleural effusions, shortness of breath, and pain and suffering both during the hospitalizations and afterward.


The plaintiff testified at her deposition that as a result of the failure to diagnose her infections, she suffered unrelenting pelvic pain, fatigue, adhesion formation, deconditioning, asthma, and an inability to adequately run her home-based physical therapy practice. Her income tax returns, however, suggested that she had her most profitable year subsequent to the surgery and that her business was adversely affected by both Hurricane Sandy and an auto accident in 2011. The codefendant ob/gyn testified that the uterine perforation was caused by current from the resectoscope, and that the bowel perforation was likely caused by adherence of the small bowel to the uterus.

He felt that, in the absence of continued bleeding, he did not want to subject the patient to laparotomy (which would have been required, given her surgical history) because most small uterine perforations heal without repair. He felt that the management overnight was appropriate, given that he did not have reason to suspect bowel perforation until the patient became “shocky” the following morning. The codefendant surgeon felt there was no indication for post-op antibiotics, as there is always contamination after a bowel perforation, even one this small, and he expected it and followed the patient carefully. He stated that the absence of elevated WBC, elevated temperature, and culture-proven bacteria in her pelvic or chest fluids confirmed his opinion that the patient never suffered from infection.

We represented the hospital, the chief obstetric resident, and the on-call obstetric attending in this case, and because the 2 codefendant attendings took full responsibility for the surgeries and the complications and the management of the patient thereafter, we moved for dismissal on their behalf. Dismissal was granted to the resident and the on-call attending, but the court felt that while there was no direct allegation of negligence against the hospital, there was a question of fact as to whether the hospital was vicariously responsible for the codefendant surgical consultant under an “apparent agency” theory (essentially whether the patient had reason to believe that he was assigned as a hospital representative as opposed to a private attending when they first met). Our expert obstetrician felt that the care was reasonable and appropriate, and that observation overnight was within the standard of care because the complication of uterine perforation was a known risk of the procedure and there was no way to know whether there was a bowel perforation without first performing laparotomy.



The trial

The codefendant ob/gyn settled on the morning the trial was to begin. As a result, the case proceeded to trial against the hospital and the codefendant surgeon. We were able to obtain testimony from the codefendant surgeon confirming that he was consulted as a private attending by the codefendant private ob/gyn, and that he did not and would not hold himself out to the patient as an employee of the hospital, but rather would have told her he was brought in by her private obstetrician as a surgical consultant. Because the patient had already testified that she did not recall meeting the surgeon until after the operation, we were let out of the case at the close of the plaintiff’s evidence.

The verdict

The codefendant surgeon took the case to verdict and the jury returned a verdict in his favor, finding that he did not depart from the standard of care in treating the patient and indicating that they did not believe, based on the evidence, that the patient ever had an infection.

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