By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola
Los Angeles
Jamie Terrence, RN
President and Founder, Healthcare Risk Strategies
Former Director of Risk Management Services
(2004-2013)
California Hospital Medical Center
Los Angeles
Morgan Lynch, 2018 JD Candidate
Pepperdine University School of Law
Malibu, CA
News: In 2013, a woman underwent surgery to remove a mass in her abdomen. The operating physician reviewed reports from several other physicians, who allegedly determined the patient had a mass the size of a potato. When the surgeon began the procedure to remove the mass, he found nothing to remove and consulted with a general surgeon, who confirmed there was no mass. Because of the surgery, the patient suffered internal damage that required her fallopian tube to be removed, preventing her from bearing children.
The patient and her husband sued the operating physician as well as several other persons. After a battle of the experts, the eight-member jury returned a $625,000 verdict in favor of the plaintiffs to compensate for lost wages, medical expenses, loss of consortium, and disfigurement.
Background: On May 10, 2013, an obstetrician-gynecologist at a Pennsylvania health center performed an unnecessary exploratory laparotomy on a patient that caused scarring and adhesive disease. Prior to the procedure, a radiologist at a separate hospital read a transvaginal ultrasound taken of the patient on April 23, 2013, as revealing a 6 cm mass, but the ultrasound scan was, in fact, normal. Another radiologist allegedly read a May 8, 2013, CT scan of the patient’s pelvis as suspicious for a solid mass, but in a different part of the patient’s body. Again, the scan was normal, and no solid mass existed. The two radiologists were allegedly employees and agents of the hospital and the OB/GYN was an employee of the health center.
In deciding to proceed with the surgery, the OB/GYN relied on the reports of the two radiologists, which contradicted his own findings of a normal pelvic and rectal exam, the report of a GI specialist who conducted a rectal exam, and a normal colonoscopy. The OB/GYN also ignored the recommendations of the two radiologists to order a CT scan with rectal contrast, and an MRI. Furthermore, the two radiologists’ reports noted the mass in different areas of the patient’s body; thus, the physician concluded it was a “mobile mass.”
The OB/GYN contended he discussed the surgery with a general surgeon to confirm he should remove the mass via a mini-laparotomy, but refer the patient to the general surgeon if the mass was mesenteric. The general surgeon alleged that he was not consulted before the surgery and that if he did discuss the surgery with the OB/GYN beforehand, he would have examined the patient and reviewed the medical studies. In fact, the general surgeon alleged that the first time he encountered the case was when the obstetrician called him into the operating room because he could not find any mass in the patient’s open abdomen.
On Nov. 14, 2014, the patient filed a medical malpractice claim in the U.S. District Court for the Eastern District of Pennsylvania. In February 2016, three years after the surgery and four months after the complaint was filed, a physician performed an exploratory laparoscopy to evaluate the integrity of the patient’s left fallopian tube. He found significant pelvic adhesive disease with occlusion of the left fallopian tube. The physician cut the adhesions and removed the patient’s fallopian tube.
In a second amended complaint on July 25, 2016, the patient and her husband alleged medical malpractice and loss of consortium claims against the OB/GYN and the health center at which he was employed, and the radiologists and their employing hospital. The plaintiffs alleged, inter alia, failure to properly diagnose, monitor, and treat the patient, failure to perform exploratory surgery laparoscopically, and failure to properly read the April 23, 2013, transvaginal ultrasound and the May 8, 2013, CT scan of the pelvis.
On Feb. 15, 2017, the hospital was dismissed by stipulation of the parties, and the case proceeded to trial against the physicians and health center. At trial, the plaintiff’s gynecology expert offered the opinion that the surgery and loss of female anatomy was a direct result of the OB/GYN’s unnecessary surgery. The defendant radiologists’ expert in radiology opined that because they expressed uncertainty, requested further studies, and did not make the decision to perform surgery, they met the standard of care. The OB/GYN’s expert opined that he was justified in relying on the reports of the radiologists and physical exam by the patient’s family physician.
After the five-day trial, the eight-member jury found the OB/GYN 100% liable. On March 22, 2017, an amended judgment was entered in accordance with the verdict in favor of the patient for $625,000.
What this means to you: First and foremost, this case presents the issue of consultation of and respect for other physicians. The two radiologists offered their reports, but were hesitant about the existence of a mass. The OB/GYN disregarded recommendations by the two radiologists to perform further tests to ensure the mass existed. At trial, the radiologists’ expert did not opine that they read their respective tests accurately. Rather, the expert opined that the uncertainty they expressed and the fact that they were not responsible for the decision to perform the surgery were sufficient to satisfy the applicable standard of care. If the OB/GYN had given more deference to the radiologists’ concerns about the existence of a mass and investigated further, it is possible that this case would have been prevented altogether.
This case also shows the importance of conducting thorough pre-surgery exams to ensure patients do not have pre-existing conditions that may complicate the procedure and result in otherwise avoidable liability for the healthcare provider. Here, the OB/GYN had access to reports from three different physicians, but it is unclear whether he had access to the patient’s full medical record. At trial, the defense argued that the adhesions were caused by chlamydia the patient contracted in 2006. However, when the OB/GYN conducted the exploratory laparotomy, he took note in his operative report that he checked the patient’s uterus, ovaries, and fallopian tubes, and found them to be normal and did not find signs of adhesions or endometriosis. This report created a strong causation argument for the plaintiffs: When the patient underwent surgery in 2013, there were no adhesions, but in 2016, there were adhesions. If the chlamydia did cause the adhesive disease, the OB/GYN failed to observe and note any signs when operating.
The discovery rule — which generally tolls or suspends the running of the statute of limitations — became relevant to this case when the amended complaint was filed. The first complaint did not allege the loss of female anatomy since the fallopian tube had not yet been removed. Under the circumstances, the subsequent discovery of the latent harm that required removing the fallopian tube did not preclude the patient from amending her complaint and adding the claim against the OB/GYN, because the plaintiff had no reason to previously suspect the existence of this issue. Note that, though typically delay in litigation benefits the defense, a countervailing consideration is that sometimes delay results in a plaintiff discovering additional harm. Although subsequent and excusable discovery of an injury may not preclude later litigation, an early settlement may induce the plaintiff to voluntarily waive all remaining claims known and unknown, and preclude later litigation.
Finally, while the defense did not raise the issue in this case, informed consent again could have been used here to show that the patient knew of the risks of the exploratory laparotomy and chose to undergo the surgery. Transparency with patients is key to preventing suits because it puts more responsibility on the patients and makes them feel like the physician has their best interests in mind — an important factor in determining whether an adverse medical result becomes a lawsuit at all.
That said, there are limitations to this idea. It would be extremely unfair to burden the patient entirely with the decision to proceed when facts are ambiguous. If the surgeon is uncertain, would the patient have a better understanding? This is highly doubtful. Clearly, a reasonable physician facing a similar situation should follow the standard of care required by repeating both the ultrasound and CT scan, obtaining an MRI if indicated by the new studies, and, if any ambiguity remained, consulting an expert in the field, be it a general surgeon or more senior OB/GYN before surgery, and asking that surgeon to assist with the surgery or be readily available. The female reproductive organs are continually active, with cysts forming both ovarian, in utero, and endometrium. It is imperative that as much accurate information as possible be available before any invasive procedure takes place. If it is determined that a mass does exist but the nature of the mass is difficult to establish, a physician also might consider repeating tests and waiting several weeks to establish the continued existence of the mass, thus avoiding invasive procedures and preventing scar tissue formation, which leads to adhesions and further internal complications.
REFERENCE
Decided on March 17, 2017, in U.S. District Court for the Eastern District of Pennsylvania, Case No. 14-cv-06674.
A physician did not confirm the existence of an abdominal mass, resulting in an unnecessary surgery.
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