Hysterectomy without consent?

Ms. Collins is an attorney specializing in medical malpractice in Long Beach, California. She can be reached at dawncfree@gmail.com.

Claim of lack of consent for hysterectomy

In 2009, a 48-year-old New York woman underwent an operation to remove a uterine fibroid. The operation performed by her gynecologist was a total hysterectomy with salpingo-oophorectomy. The woman later claimed that, at the office visit with the gynecologist, she was told she could have her surgery the next day or she would have to wait a month. She chose to have it the next day and was informed she had to undergo immediate preparations for her admission to the hospital and surgery. The patient claimed that on the day of surgery she was seen by another physician, who revealed that a hysterectomy was planned. The patient maintained that she protested but the doctor explained a hysterectomy was necessary because of her heritage and family medical history, which increased her risk of ovarian cancer. The woman claimed that she and this physician reached an agreement that a hysterectomy would be done only if cancer was found. While she did sign the consent form, she claimed it only stated “TAH/BSO.” The patient learned after her surgery that cancer was not found at the time of the procedure.

The patient sued those involved with the operation, alleging lack of informed consent and performance of unnecessary surgery. She contended that it had been agreed that a hysterectomy would be performed only if cancer was encountered.

The verdict

The jury awarded the patient $142,000.

Analysis

In this case, it was learned during trial that the patient had a preoperative CA-125 test done and the results indicated no cancer. These results were not revealed to the patient or shared during discovery. Because the defense withheld this information, the court struck the physician’s answer to the original lawsuit complaint, which left the defendant with no defenses to the charge of negligence. The case went to the jury on the issue of damages only, with the task of determining how much money to award the patient.

Related: Should salpingectomy be standard of care at time of bilateral tubal ligation? 

Failure to perform cesarean leads to fourth-degree laceration

A Pennsylvania woman in her early 30s presented to a medical center at term for induction of labor in 1997. Her labor and delivery were managed by an obstetrician. Because of maternal fatigue and a compound presentation with a hand on the side of the fetal head, a vacuum extractor was used. The infant weighed 9 lb, 12 oz. The patient suffered a fourth-degree perineal laceration and subsequently developed a rectovaginal fistula, which required an operation in 1999. A year later, the patient underwent another operation to remove some scar tissue. The woman claimed she was unable to have intercourse due to pain and discomfort and that she has continuing vaginal pain.

The patient sued the obstetrician, his group, and the hospital, claiming that a cesarean delivery should have been performed. She contended that her husband and his siblings all had large heads, a fact that should have been taken into consideration for mode of delivery.

The hospital was dismissed prior to trial and the case was tried against the obstetrician and his practice. The physician argued that while he suspected a large fetus, there were no indications that the head and body would not fit through the pelvis, and so, a vaginal delivery was appropriate. He also claimed that a perineal tear is a known complication of a vaginal delivery and not preventable, and alleged that the patient’s current pain was unrelated to her perineal tear.

The verdict

A defense verdict was returned.

Hysterectomy after uterine perforation claimed to be unnecessary

A 47-year-old Texas woman underwent endometrial ablation of her uterus in 2010. During the procedure the uterus was perforated and the gynecologist performed a hysterectomy. Six days later the patient was diagnosed with peritonitis and underwent a second procedure to repair a bowel perforation. She claimed she subsequently developed untreatable bowel adhesions, which caused her chronic pain.

The woman sued the gynecologist and his practice, alleging lack of informed consent for the ablation and hysterectomy, negligence in perforating the bowel and failure to recognize the perforation or to diagnose the peritonitis in a timely fashion. She argued there were less expensive and invasive alternatives than ablation and that state law required consent for hysterectomies without documented evidence of immediate danger to life. She contended the uterine perforation was not life-threatening and could have been repaired. She further claimed that her husband did not have her authorization to consent on her behalf as required by state law.

The physician maintained that the husband gave informed consent for the hysterectomy and that a bowel perforation is a known complication of the procedure. He also claimed that the patient’s care was transferred to another physician after the second postoperative day.

The verdict

A $200,000 settlement was reached.

Stroke while taking OCs

A 40-year-old Washington woman went to a family medicine clinic to obtain a prescription for oral contraceptives (OCs). She was seen by a physician assistant, who conducted a complete physical exam. No contraindications to OCs were noted and a prescription was provided to the patient. About 2 months later, the woman suffered a debilitating stroke. During the work-up for the stroke the patient was found to have patent foramen ovale.

The woman sued the family medicine practice and physician assistant, alleging lack of informed consent for the OCs, and specifically that the risks and benefits were not explained to her and that she was not told of an alternative such as an intrauterine device. She claimed that OCs were not safe for her at her age, given the higher risk of stroke than in someone younger.

The defense claimed that although there was no note in the medical record about the conversation, a detailed discussion took place before the prescription was issued. They also argued that the patient had used OCs in the past and that other physicians had informed her of their risks. The defense further alleged that the stroke she suffered was due to the patent foramen ovale, not the use of OCs.

The verdict

A defense verdict was returned.

Failure to perform cesarean blamed for brachial plexus injury

In 2007, a Texas woman’s delivery was complicated by a shoulder dystocia. The infant sustained a left brachial plexus injury in his non-dominant left shoulder, has undergone 5 operations, and is expected to require additional procedures. He requires physical therapy and has less than 50% function in the arm and is unable to raise it above his shoulder.

The woman sued the obstetrician, alleging negligence in the use of excessive traction during the delivery and arguing that a cesarean should have been performed.

The physician denied any negligence in the management of the shoulder dystocia and argued that a cesarean was not indicated.

The verdict

The hospital settled prior to trial for a confidential amount. A defense verdict was returned for the physician.

Woman claims removal of excessive amount of labia minora

A 40-year-old New York woman underwent surgical reduction of the labia minora in 2010. The procedure was performed by her gynecologist and was intended to relieve discomfort the patient had during sexual activity. The patient subsequently sued the gynecologist, claiming that an excessive amount of the right labia minora was removed and that her pain had worsened and she could not properly urinate. She alleged that a near total removal of the right labia minora was the result and contended that presurgical demarcation of the operative area was not performed.

The physician argued that demarcation was performed with the use of clamps and the operation was properly performed. She maintained that the asymmetry was due to poor healing of the surgical wound, and that the patient had not reported any complications related to urination to her subsequent treating gynecologist. She argued that the patient’s ongoing pain was due to estrogen deficiency.

The verdict

A defense verdict was returned.

Rectal tear during vacuum-assisted delivery

In 2011, a 47-year-old woman delivered a child under the management of a New York obstetrician. During the procedure, use of a vacuum was required. The patient subsequently developed a rectovaginal fistula, which became inflamed and caused fecal incontinence. The patient had 2 operations to repair the fistula and she claimed that she suffered residual effects, including occasional flatulence.

The patient sued the obstetrician, alleging lack of informed consent for the use of the vacuum because it was used after only 2 pushes had failed to deliver the infant. She also claimed that the vacuum caused the tear in the rectum and that the obstetrician failed to recognize it at the time when it should have been repaired.

The physician, who did not specifically recall this delivery, claimed that there was informed consent and if there were an injury, it was too small to see.

The verdict

A $1.02 million verdict was returned, including $100,000 for the husband’s loss of consortium claim.

Failure to properly manage shoulder dystocia alleged

An Illinois woman was admitted to a hospital in 2000 for induction of labor. Labor continued into the next day and the following morning, a second obstetrician took over and performed the delivery. Because fetal heart rate decelerations were detected when the head was being delivered, the physician used a vacuum to complete the delivery. When an anterior should dystocia of the right shoulder was encountered, a McRoberts maneuver and suprapubic pressure were employed and the physician performed a clockwise rotation and delivered the infant. Following delivery, the newborn was diagnosed with a brachial plexus injury to the left arm. His neurologic presentation was mixed but fine motor movements of the hand were intact. The child underwent 2 operations and at the time of trial was a teenager. An honor student, he participated in sports and had no pain or numbness.

A lawsuit was filed on behalf of the minor child against the delivering physician and her practice, alleging that she failed to timely diagnose the posterior shoulder dystocia and improperly performed delivery maneuvers that contributed to the brachial plexus injury.

The obstetrician argued that posterior shoulder dystocia could not be identified until after delivery and that the injury was caused when that shoulder became impacted on the sacral promontory, prior to the use of the vacuum. She also claimed that the maneuvers used to relieve the anterior shoulder did not contribute to the injury.

The verdict

A defense verdict was returned.

Infant death after preterm breech delivery

A 32-year-old Missouri woman was 28 weeks, 4 days pregnant when she was admitted to the hospital in 2009 for premature rupture of membranes. A maternal-fetal medicine physician took over her care. The patient was placed on a fetal heart rate monitor and remained on bed rest for the next 2 1/2 days before being placed on intermittent monitoring and being allowed to use the bathroom. Over the next 2 days, the patient complained of pain and some bloody vaginal discharge. As signs of labor increased, she was taken to the operating room for delivery. A cesarean had been planned due to breech position, but because delivery seemed imminent, the on-call physicians decided to deliver vaginally. The fetal head became entrapped in the cervix, cutting off oxygen. When finally freed and delivered, the infant was unresponsive and died 20 minutes later.

In the lawsuit that followed this delivery, the patient alleged negligence in failure to diagnose active labor in a timely manner and to perform a cesarean section, thus avoiding the injury and death.

The physicians claimed that the fetal monitor showed no contractions, the patient was assessed regularly with no evidence of active labor, and there were no signs of labor when the perinatologist last saw the patient 3 1/2 hours prior to delivery. The patient had a precipitous delivery without time to undergo a cesarean.

The verdict

A defense verdict was returned.