Plaintiff alleged that the defendants failed to properly perform a laparoscopic hysterectomy, right salpingectomy and uterosacral ligament colpopexy; improperly lacerated, tore and/or entered a blood vessel; caused and/or allowed plaintiff to bleed internally; caused and/or allowed a perforation, laceration and/or other injury to the right ureter; caused and/or allowed a uterovaginal fistula; and caused plaintiff to undergo additional surgical procedures. The plaintiff claimed the following permanent injuries: uterovaginal fistula; urinary incontinence; right ureteral stricture; right hydronephrosis; right hydroureter; perforation, laceration, injury and/or trauma to the right ureter; infection; unnecessary and prolonged hospitalizations.
Dr. A explained at his deposition that the injury in this case was likely due to an anatomical variation. He testified that with all the safety profiles he employs during the course of surgery to protect the ureter and identify the uterosacral ligament, the fact that he put in a stitch that caused direct trauma to the ureters suggests that they were much closer to the uterosacral ligament than is typical, or that the woman had extremely weak tissue since the stitch was able to cut through 2.5 cm of the tissue. He testified that “It’s unlikely that the stitch ripped through 2.5 cm” and that as a result, it’s likely that she had a “combination of weak tissue and an abnormal position of ureter to the operative field.”
Our ob/gyn expert agreed that colpopexy was a routine and necessary part of any vaginal hysterectomy, and that when the uterus is removed, the uterosacral ligaments have to be reattached some place and cannot just be left “flopping around.” He also agreed with Dr. A’s opinion that the injury to the ureter occurred during the colpopexy and not the hysterectomy. However, he did not agree that the injury reflected some anatomic anomaly, as such an injury can occur even in the face of normal anatomy. He added that because the patient already had a vertical abdominal incision, he would have performed an abdominal rather than vaginal hysterectomy.
Plaintiff’s expert gynecologist testified that Dr. A failed to provide the plaintiff with informed consent because he failed to offer her the alternatives to surgery including hormonal therapy, uterine-artery embolization, “watch and wait” because she was perimenopausal, and also failed to do a preoperative drug screen and genetic testing to further evaluate her cancer risk, notwithstanding the family history. He also testified that the alternative treatments should have been undertaken ahead of surgery and that failure to do so constituted a departure from standards of care. The last departure flowed from the fact that their expert testified that it was ill-conceived to attempt to remove a 20-week/500-g uterus vaginally and that Dr. A should have performed a hysterectomy laparoscopically rather than remove the pieces vaginally.
Cross-examination, supported by our expert, made clear that there was no reason to discuss alternative treatments with the plaintiff as they were not viable under the circumstances because none of them addressed the uterine cancer issue. While the woman’s fibroids may well have been reduced with any of the treatments and have disappeared when she became menopausal, all of those options left her with her uterus in place and, thus, she remained at risk for uterine cancer. We further argued that the concept of genetic testing made no sense because regardless of the test outcome, hysterectomy would be mandated because of the family history in that not all genetic subtypes of uterine cancer have yet to be identified.
Insofar as the propriety of the vaginal hysterectomy is concerned, on cross it was established that the American College of Obstetricians Gynecologists recommends vaginal hysterectomy as the procedure of choice. It was further established that the ureteral injury didn’t occur during hysterectomy but rather during colpopexy and thus plaintiff’s expert testimony that the uterus couldn’t be successfully removed vaginally was factually inaccurate and irrelevant.
Ultimately, the case settled during jury deliberations for less than half of plaintiff’s pretrial settlement demand.