Partner at Aaronson, Rappaport, Feinstein & Deutsch, LLP in New York City, specializing in medical malpractice defense and healthcare litigation.
This case involves an eight-year-old patient who originally presented with a chief complaint of right-sided abdominal pain and one episode of vomiting.
On June 2, 2011, the 8-year-old patient presented to the defendant Emergency Department (ED) accompanied by her parents with a chief complaint of right-sided abdominal pain that started at lunchtime, and one episode of vomiting (a second episode was alluded to by the attending in her note).
The child had constant, moderate in the right lower quadrant (RLQ) that did not radiate and had sudden onset. A similar incident had occurred the week before. The child’s medical history was non-contributory.
On examination, there was tenderness in the girl’s RLQ without guarding or rebound, no masses were palpated, and bowel sounds were normal. The child felt better while in the ED; she was well-appearing and “able to jump without difficulty.”She was sent home with instructions to return if she had fever, worsening abdominal pain, or new symptoms, and to follow up with her primary care physician (PCP) the next day.
A computed tomography (CT) scan with contrast that was ordered initially was canceled. Discharge instructions indicated a diagnosis of “abdominal (belly) pain,” with the specific cause being unknown. It was noted that the illness did not seem dangerous or require hospitalization or emergency surgery. The instructions recommended bringing the child back in the event of increasing or persistent pain. A separate sheet of paper described diagnosis and treatment of “UTI.”
On June 10, the girl was seen for what the codefendant pediatrician described as a sick visit. His note is illegible, although the assessment appeared to be “UTI” and the plan appeared to consist of a follow-up appointment. Results of the urinalysis and urine culture done that day were normal.
Follow-up for “UTI” was done by the co-defendant pediatrician on Sept. 24, when the child was seen for fever and a cough. No mention was made of abdominal pain.
Two days later, the child returned to the defendant hospital accompanied by her parents with a complaint of a 3-day history of RLQ abdominal pain that was severe, intermittent, and non-radiating and reported vomiting.
The mother reported seeing the child’s PCP, who diagnosed the girl with “constipation” and gave her a laxative and enema, without improvement. Exam at that time revealed tenderness, rebound, and guarding, although no mass was felt and bowel sounds were present. Laboratory testing revealed an elevated white blood cell count.
A CT with contrast of the abdomen and pelvis was done and showed a predominantly cystic mass measuring 6.4 6.2 cm that contained internal septations. The uterus was compressed between the mass and urinary bladder. The ovaries could not be visualized. There was a small amount of free fluid in the pelvis.
The finding was believed to be an ovarian cystic mass, mesenteric cyst or enteric duplication cyst. Pelvic ultrasound showed an enlarged right ovary that measured 7.3 4.6 4.6 cm, midline in the pelvis. A thick-walled right ovarian cystic mass with intervening thick septations was visible and there was trace fluid in the pelvis. By comparison, the left ovary was 2.2 cm in its widest diameter.
The impression was “complex cystic right ovarian mass with thick septation.” Given the size of the mass, superimposed torsion could not be excluded. Surgical consultation was recommended.
Progress notes indicate that “Codefendant OB/GYN [was made] aware of CT and sono findings. He will follow as outpatient.” The family was counseled as to the need for follow-up and reasons to return.
The patient was discharged home from the ED with instructions describing a primary diagnosis of abdominal tenderness and a secondary diagnosis of right ovarian cyst. The family was also given another detailed document that described the diagnosis of ovarian cyst and included reasons for returning to the hospital.
The codefendant ob/gyn saw the patient on Sept. 27 in the office. The physician’s brief note mentions that the patient was in the ER at the defendant hospital the prior day with sudden-onset abdominal pain, she had the same pain 4 months before, and a sonogram showed a 6.4-cm cystic mass in the midline. No intervention was attempted or recommended.
On Oct. 22, the patient then saw the defendant pediatric gynecologic surgeon.Her chief complaint was intermittent abdominal pain in the RLQ for 4 months. She reported having been seen at the defendant hospital and undergoing ultrasound and CT, which showed a right ovarian cystic mass measuring 6.4 cm, as well as a possible complex right ovarian mass, predominantly cystic.
The family brought reports but not hard films. The girl was having less pain and was otherwise healthy, although her grandmother thought her “tummy was getting bigger.”
On exam, the child’s abdomen was full, with a lower abdomen mass palpable at midline, described as movable. The remainder of the exam was unremarkable. The impression was abdominal mass, rule out right ovarian, mesenteric, and duplicating cysts. The family was advised about possible “torsion” and the need to obtain the ultrasound and CT images from the defendant hospital. The child was scheduled for surgery on Oct. 4.
On October 3, the child was seen by the codefendant pediatrician for surgical clearance. Significantly, abdominal examination revealed no abnormalities. There was no pain or guarding on exam.
Surgery went forward on Oct. 4 and the family provided the films that day, on CD. The procedure consisted of exploratory laparotomy, detorsion of twisted right adnexa, right oophorectomy, left oophorocystectomy, and peritoneal lavage. The operative report noted hemorrhagic pelvis where the mass was lodged, 3 twists of the right adnexa including infrandibulo pelvic ligament, multiple follicular cysts, involvement of the uterus in the torsion (which regained color after the torsion was reduced), and other findings that were also accompanied by a diagram drawn by the defendant surgeon.
The intraoperative log lists the time in as 11:55 a.m. The incision time was 12:25 p.m. and closure time was 2:15 p.m.Time out was listed as 2:30 p.m. The anesthesia start time was listed as 12:05 p.m., with the surgery start time listed as 12:30 p.m.Anesthesia finish time was 2:45 p.m., while surgery finish time was 2:20 or 2:30 p.m.
The operative report lists the preoperative diagnosis as abdominal mass rule out ovarian lesion with intermittent torsion, and the postoperative diagnosis was right ovarian tumor with adnexa torsion, localized peritonitis, and left ovarian follicular cyst.
In the indications section of the report, the defendant surgeon noted that the case was “thoroughly discussed with the family” and the “possible risks and complications were explained and no guarantees were made.” A consent form for the procedure was contained in the chart.
The defendant surgeon found “serous ascitic fluid” suggestive of peritoneal reaction. A hemorrhagic mass was found in the pelvis consistent with a right ovarian tumor with 3 twists of the adnexa, including the infundibulopelvic ligament. The mass was 6 to 7 cm in diameter and “quite hemorrhagic with the violaceous discoloration of the ovarian mass.”
The uterus was described as splayed out with torsion. Some discoloration of the uterus resolved after the torsion was reduced. The right ovary was removed and described as “replaced completely by the tumor.” The anterior wall of the rectum, the posterior bladder, and the pelvis were “quite hemorrhagic” due to the mass. They were checked for hemostasis. “Multiple follicular cysts” were drained from the left ovary. Following peritoneal lavage, the patient was closed up. The child remained at the hospital until Oct. 7. She was eating well and without complaints of pain prior to discharge.
Pathology revealed a right ovarian mass, marked stromal congestion, edema, and hemorrhage, as well as several cysts lined with monolayer short columnar cells with old intracystic hemorrhage. Further noted were numerous primary follicles. Findings were consistent with cystic ovary with torsion, benign.
When the defendant surgeon saw the child on Oct. 15, she was healing satisfactorily. Surgical pathology showed benign ovarian cystic tumor, without any indication of infarction or necrosis. The scar was described as well-healed with slight induration under the scar.
The child returned on Nov. 12, again with satisfactory healing and postoperative course. There was slight induration under the scar, although no unusual complaints of pain. She was eating well and having regular bowel movements. Subsequent pediatric records do not indicate any further significant medical issues.
The plaintiff alleged that the codefendant hospital departed in not admitting the patient, obtaining an immediate pediatric surgical consult, referring the patient for an immediate surgical consult or transferring the patient to an appropriate facility for surgical evaluation on Sept. 26.
They criticized the failure of the codefendant hospital to contact the mother on Sept. 27, after the final interpretations of imaging from the day prior were made available (showing possible torsion). They criticized the codefendant ob/gyn’s decision to refer the patient to a pediatric surgeon on Sept. 27, without immediately referring her to the hospital, in light of imaging that could not rule out torsion.
The plaintiff alleged that the defendant gyn surgeon failed to timely operate on the patient, inappropriately delayed surgery by 3 days, failed to timely apprise herself of abdominal imaging done 5 days prior at the codefendant hospital, failed to order emergent imaging, improperly assessed the plaintiff, improperly examined her, failed to timely apprehend clinical and radiographic evidence of ovarian torsion, allowed ovarian cyst and torsion to worsen and ultimately caused or contributed to the loss of the plaintiff’s right ovary, due to worsening cyst and torsion.
It was alleged that the child suffered loss of the right ovary, decreased fertility, loss of chance of laparoscopy/laparotomy incision, abdominal adhesions/scarring, temporary incontinence, pain, and suffering.
The child’s mother testified that the girl had been having RLQ pain since June 2011, and that it began around the time of the first presentation to the co-defendant hospital that month. She didn’t recall much of the June visit, besides the diagnosis of UTI.
When asked about the child’s pain between the June and Sept. 2011 hospital visits, the mother stated that the RLQ pain happened almost daily but she was not sure if the pain changed, as the child is “not really a vocal child in letting me know.” She did state, however, that the child’s pain from September 24 to 26 was the worst she had seen.
The mother testified that on Sept. 27, she went to the codefendant ob/gyn, who spoke to them in his formal office, not in an examination room. He did not examine the child, stating that he was an adult gynecologist and did not examine children.
He did, however, discuss the possibility of torsion and provided a referral to another adult gynecologist. Instead, the mother called the codefendant pediatrician, who referred her to defendant gynecologist.
After the defendant gynecologist did a physical exam on Oct. 1, she said the child’s mass needed to be removed. Surgery was scheduled for Oct. 4. The defendant said the removal could not be laparoscopic because the mass was too large. When asked about the child’s complaints between Oct. 1 and 4, the mother stated, “I’m sure she did [have complaints] but don’t know for sure. I don’t recall.”
The defendant gynecologic surgeon went through the note from her encounter and testified that her interview and exam revealed no complaint of pain and no tenderness on palpation. Pain was described as intermittent for at least 4 months. Upon reviewing the CT and U/S reports and after assessing the patient, her impression was rule out ovarian, mesenteric, and duplicating cysts.
She testified that she counseled the family on torsion, telling them that if the child were to have an acute attack of abdominal pain, they should contact the doctor as this would indicate a surgical emergency.
Otherwise, the family was told that surgery would be done on Oct. 4. She was questioned intensely as to whether the child presented as a surgical emergency due to the presence or risk of torsion on Oct. 1. She insisted the child was not an “emergency” due to the absence of tenderness on palpation or active pain at the time of interview/exam.
She testified that a torsed ovary is capable of twisting/untwisting, and a state of torsion can be reversed and recur, intermittently.
At the time of the exam, there was no evidence of torsion, thus it was proper to schedule surgery 3 days out, to obtain pre-surgical clearance and give the family time to emotionally prepare for a significant procedure.
Our pathology expert believed the ovary was unsalvageable and had to be removed on Oct. 4.
She examined slides of the specimen and found that the patient’s ovary was both completely taken over by cyst and ischemic and infarcted from torsion. The ovary was no longer viable because of both disease processes. The slides showed that the cyst had completely taken over the ovary and the two were inseparable, and thus measures such as cystectomy or drainage were unavailing. In addition, the cyst—about 7 cm in its largest dimension on Oct. 4–had grown to a point where the ovary was most likely unsalvageable by Oct. 1.
Thus, had the defendant operated on Oct. 1, the ovary most likely would have been removed then as well.
Our pediatric surgery expert was supportive of the decision to remove the right ovary on Oct. 4.
Even in the extremely unlikely event that the de-torsed ovary “pinked up,” it would have been against good medical conduct to leave the ovary and do periodic ultrasounds to check on its viability because the surgeon would then be allowing a potentially malignant tumor to remain in the child’s body.
There was complete torsion of the right ovary, which is reflected in the operative record showing three twists of the adnexa. Finally, the expert stated that the operative pictures of the torsed and de-torsed ovary clearly showed it to be necrotic, gangrenous, and lacking any viability. In addition, the cyst had displaced any viable ovarian tissue.
After all depositions were concluded, we moved for summary judgment dismissal of the case on behalf of our client, the surgeon. We argued that the alleged 3-day delay in performing surgery was not a delay at all given the circumstances and that, regardless, the entire ovary had to come out as it was nonviable and had been that way at least since Oct. 1.
In their opposition to all defendants’ motions, the plaintiff’s expert had to concede that by the time the patient presented to our client, there was unlikely to have been any viable ovarian tissue remaining, and as such, it was imperative that intervention occurs prior to Sept. 26. As a result, summary judgment was granted to our client and the case was dismissed.
Sometimes medicolegal cases have so many moving parts that until they are all fleshed out, as it were, one cannot be certain as to where the focused allegations and defenses will lie. While this started out as a misdiagnosis and delay case as to all defendants, through the discovery process and expert evaluation, we were able to determine that the pathologic findings rendered any delay argument, at least as to our client, moot.
In the face of expert testimony in support of that pathologic conclusion, the plaintiff was forced to concede that our contentions were credible and they could not mount an argument in rebuttal that would enable them to maintain the case against our client. As such, dismissal was obtained.