Legally Speaking: Was this bowel perforation malpractice--or a case of lawyerly semantics?

Was this bowel perforation malpractice-or a caseof lawyerly semantics?

THE FACTS

Sometimes, even seemingly indefensible cases have to go to trial. This can happen if, for example, a defendant won't settle and expert review is critical of the care provided. To carry the day in such situations, which are rare, the defendant must be competent and credible and his or her lawyer clever and creative.

On October 2, 2001, the defendant performed the tubal ligation at a hospital center, and according to the operative report, there were no complications. A survey of the pelvis and abdomen revealed entirely normal anatomy, and a Kleppinger device was advanced through the operative scope and used to blanch each fallopian tube. No bleeding was noted, blanching was observed to be complete, and the instruments were removed from the abdomen. The patient was taken to the recovery area in stable condition, and was ultimately discharged with no evidence of bleeding or other complications.

Ten days later, the woman called the defendant's office, complaining of several days of on-again, off-again abdominal pain and cramping that varied in intensity. Her last menstrual period 7 days earlier was heavier than usual in flow and cramping. She complained of diarrhea without nausea or vomiting or change in appetite. Contrary to postoperative instructions, the patient also revealed that she had engaged in unprotected sexual intercourse just a few days after the surgery. She claimed a temperature of 101°F, and was advised by the defendant to go to the hospital's emergency room for evaluation. A gynecologic resident was notified, and ultimately called the attending physician to tell him that the patient did, in fact, have a 101°F temperature on presentation, but was afebrile after examination and analgesics. Physical examination showed that the woman's abdomen was benign, and a pelvic sonogram showed a normal uterus and ovaries without any free-fluid collection. The patient was prescribed doxycycline for 7 days, secondary to the defendant's diagnosis of pelvic inflammatory disease (PID), and was advised to follow up with the defendant's office in 48 hours, or sooner, if her symptoms did not improve.

Three days later, the patient called the defendant's office, still complaining of abdominal pain with an elevated temperature of 102°F. Once again, she was advised to go to the emergency room, and a pelvic sonogram performed upon presentation revealed a possible abscess. The defendant advised that she be admitted for IV antibiotic administration and observation. Ultimately, 15 days after the tubal ligation, the patient was returned to the operating room with a preoperative diagnosis of bilateral fluid collection and acute abdomen, with a postoperative diagnosis of bilateral pelvic abscesses and sigmoid perforation. An exploratory laparotomy performed by the defendant showed bilateral adnexal abscesses and multiple, dense pelvic adhesions. The patient's colon was densely adherent to the posterior uterus and adnexa, more so on the left than the right. After lysis was performed to separate the bowel from the posterior uterus, a small 2-cm laceration was discovered in the posterior portion of the uterus and sutured; a pinpoint perforation in the lower portion of the sigmoid colon posterior to the uterus also was observed. A surgeon consulted on the case recommended a diverting colostomy and a portion of the left side of the bowel was reapproximated, using stitches.

After discharge, the patient continued to be followed by the defendant physician over the ensuing 2 months. Her colostomy was reversed early the following year.