A 32-year-old gravida 0 was seen for her wellness visit in March. She had no complaints. Her pelvic examination revealed adnexal fullness. An ultrasound performed in the physician’s office revealed a slightly enlarged left ovary, measuring 6 cm by 4 cm, with two cysts, 1.9 cm and 1.7 cm in diameter. The right ovary was not visualized on the vaginal ultrasound. An abdominal ultrasound was not performed. An evaluation 3 months later (June) again revealed adnexal fullness.
An ultrasound identified a right ovary measuring 7 cm by 3.9 cm, with 3 small cysts. The left ovary was 4.5 cm by 2.9 cm, with a 1 cm cyst. A 6-month follow-up was recommended. The patient was seen the following December with complaints of postcoital bleeding. An endometrial biopsy revealed proliferative endometrium.
The patient was seen for her annual exam the following March, at the age of 33 years. It was noted that she had been on sertraline (Zoloft) for 2 years for treatment of depression. Her examination was normal. No additional studies or laboratory testing were performed. Four months later (July) she was seen in the emergency department for abdominal and pelvic pain. A CT revealed ovarian cysts bilaterally, the right measuring 5.2 cm by 4.6 cm by 3.5 cm, and the left measuring 5.1 cm by 4.9 cm by 3.5 cm.
1. DOCUMENTATION. Documentation is critical to defending a one’s actions. Although some states have passed laws that allow brief, truncated documentation, eg, “RBA (risks, benefits, alternatives) discussed” as adequate to reflect informed consent, it is prudent to know the requirements in one’s own state. In general, adequate informed consent requires a discussion of the medical condition or finding requiring treatment or surgery, the planned procedure, the alternatives for treatment, including observation only, and the substantial risks of the procedure. Such documentation enhances patient understanding while enhancing the defensibility if litigation occurs.
The patient was seen by her gynecologist 3 months later (October). She requested testing for ovarian cancer as her mother had recently been diagnosed with breast cancer. Her physician ordered an ultrasound and a CA 125. The patient was seen for her annual exam 3 months later (January), at 34 years of age. She relayed increasing difficulties in her marriage and noted she was now on citalopram (Celexa) for depression. A review of a recent pelvic ultrasound revealed a right adnexal cyst measuring 7.3 cm by 8.5 cm by 6.7 cm, with no further description. A CA 125 obtained on the day of the ultrasound was 46 U/mL. The patient was placed on combined oral contraceptives, with follow-up planned in 3 months.
The patient was seen in April, about 25 months from her initial presentation. An ultrasound revealed an enlarging right ovary, now 14.4 cm by 8.5 cm by 9.8 cm. Although her gynecologist recommended surgical treatment, the patient was reluctant to undergo surgery at that time due to an unstable work situation.
2. COMMUNICATION. The patient in her initial interview with her attorney stated that she wanted to hear an explanation of why things were handled the way they were. She wanted an explanation and an apology. Had this been done, she may not have sued. It is recognized that the lack of clear communication is one of the main issues that lead to litigation. This case illustrates how an open and clear explanation of what happened, with an empathetic approach to the patient’s concerns, may have avoided litigation altogether.
She was seen one month later (May), with an exam confirming an adnexal mass. She underwent another pelvic ultrasound that revealed a right ovarian cyst measuring 10 cm by 11 cm with a smaller secondary cyst. The gynecologist’s impression was, “Adnexal cyst, probably benign.” The patient was scheduled for surgery. Her preoperative consultation documentation was, “Surgery discussed, consents signed.” There was no additional documentation of the discussion, nor mention of more extensive surgery. The consent for surgery indicated, “Exploratory laparotomy with probable removal of ovary.”
The patient underwent an exploratory laparotomy via a transverse lower abdominal incision. An enlarged right ovary measuring 10 cm by 16 cm was removed and sent for frozen section, which found a serous tumor of at least low malignant potential (LMP). A left ovarian cyst was removed and sent for frozen section. The gynecologist elected to proceed with a total abdominal hysterectomy and bilateral salpingo-oophorectomy (BSO) before the results of the frozen section returned, which revealed a benign serous cyst. The total surgical time was 1 hour and 10 minutes. Final pathology revealed a uterus weighing 100 grams, with adenomyosis and a small leiomyoma. The right ovary had a serous tumor of LMP.
The left ovary had endosalpingiosis and a benign serous cyst. Peritoneal washings were negative. The patient had an uncomplicated recovery from surgery. However, she did experience significant difficulties with hot flashes, which were poorly responsive to estrogen replacement therapy. She had worsening depression that significantly impacted her marriage, which ended in divorce 9 months following surgery.
The patient changed physicians about 1 year later. Her new gynecologist noted she was experiencing lots of hot flashes, significant memory change, and an exacerbation of depressive symptoms. Over the next 9 months, the new gynecologist received several calls from the patient requesting medications for worsening premenstrual syndrome. This culminated in a call in which the patient described panic attacks and worsening anxiety. She requested sertraline (Zoloft). The physician prescribed diazepam (Valium) and made an appointment for the following day, advising her that no further medications would be prescribed until she was seen. The patient did not show for this scheduled appointment.
3. EXPERT SELECTION. The expert for the plaintiff had an excellent presence in the courtroom. He was down to earth, established an immediate rapport with the jury, and was able to explain complex concepts in a clear, understandable manner. The concessions addressed during his testimony further established credibility. Too often, experts on both sides take an uncompromising position that antagonizes jurors. Balanced testimony enhances the jury’s acceptance of an expert and their opinions.
About two months later, the patient filed a malpractice suit against the original gynecologist claiming the performance of unnecessary surgery, specifically a hysterectomy and BSO; a breach of the standard of care by not referring to a gynecologic oncologist; the loss of procreative potential; significant pain and suffering, including uncontrollable symptoms related to surgical menopause; and worsening depression and anxiety, ultimately resulting in dissolution of her marriage.
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.
4. WITNESS PREPARATION. The defendant presented a defensive posture without displaying empathy for the patient. Such posturing leads to a poor connection with the jury, which may lead to a less favorable ruling.
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.