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Failed Gynecologic Surgery Case - $950,000 Settlement

Eleven law firms had rejected this case that involved a thirty-seven-year-old Kentucky resident who sustained multiple complications from gynecologic surgery. We felt that the case might have merit despite the many rejections because she had sustained nerve damage that created pain and dysfunction in her right leg together with many lower abdominal injuries. The client’s right leg injury suggested to us that the primary surgeon had operated outside the intended operative field. Our investigation confirmed our suspicions.

We determined that the primary surgeon, as documented in two different versions of her operative report, had difficulty with visualization in the operative field as a result of a large uterine wall perforation that occurred early on in the procedure. We also determined that the surgeon had materially altered her operative report in what appeared to be an attempt to hide her errant use of the surgical cutting device which she had mistakenly directed through the uterine wall and into a nerve-rich area when her visualization was poor. Although it was true that the client had an urgent need for the gynecologic surgery and that there was significant complexity pertaining to the medical issues in the case, we simplified our presentation of the case by utilizing three themes:

  1. First, do no harm; keep the patient safe;
  2. Don’t cut when you can’t see; and
  3. Don’t alter the patient’s medical records in an attempt to hide your negligent acts.

The client’s story began with her needing gynecologic surgery because she had developed a large fibroid mass in her uterus which caused her substantial pain and bleeding. The client underwent a hysteroscopic myomectomy for the removal of the fibroid mass. Two surgeons participated in the client’s surgery.

Hysteroscopic myomectomy by definition is a surgery conducted exclusively within the confines of the uterus. The surgery is performed with the use of a hysteroscope, a device equipped with a light source and a cutting instrument (in this case a morcellator was used). In performing this surgical procedure, the surgeon opens the vagina with the use of a speculum. Next, the surgeon dilates the uterus and then directs the hysteroscope through the vagina and into the uterine cavity. Fluid is then directed under pressure into the uterus through the hysteroscope to expand the uterus to afford visualization. Expansion of the uterus and use of the light source are essential to providing adequate visualization of the operative field. In the instance of the client’s surgery, the large hole in the uterine wall prevented adequate visualization because the uterus could not be properly expanded.

At all stages of the litigation, the primary surgeon denied any irregularity in her conduct of the hysteroscopic procedure. However, evidence in the case indicated that the surgery had not gone as planned. In addition, the pathologist who examined the surgical specimen yielded from the myomectomy reported that it included fimbriae from a Fallopian tube. Fallopian tubes are anatomic structures situated outside of and superior to the uterus. The pathologist took the extraordinary step of notifying the surgeon by email of the Fallopian tube finding. After receiving and acknowledging the pathologist’s email, the surgeon changed the content of her operative report. The altered operative report omitted all references to the surgeon having activated the cutting device during the procedure. At deposition and in her responses to interrogatories, the surgeon flatly denied that the email in any way influenced her preparation of the final operative report.

We contended that the surgeon’s negligent use of the cutting device caused our client’s to sustain injuries to various pelvic nerves that control bowel and bladder function and vaginal sensation. We also contended that our client sustained nerve injury from errant use of the cutting device that led to her diagnosis of complex regional pain syndrome both in her abdomen and in her right leg.

The defendants contended that plaintiff was inconsistent in the reporting of her complaints and that she had a history of bowel and bladder complaints that long preceded the hysteroscopic procedure. In addition, the defendants pointed to the absence of any neurophysiological testing that confirmed her nerve injury complaints. Defendants also contended that plaintiff’s complaints were of psychological origin, spawned by her documented history of post-traumatic stress syndrome arising out of two instances of rape and from other psychological trauma stemming from her combat duty during a 13-month tour in Afghanistan. Finally, defendants cited two separate neuropsychological examinations undergone by plaintiff that indicated that she was prone to greatly exaggerate injury complaints. One of the neuropsychological examinations had been conducted soon before the subject surgery. The other examination took place five months after the surgery.

The client had achieved the rank of Major in the Army and had a 13-year career marked by outstanding annual reviews that lauded her as a “rising star.” She also won a Bronze Star in connection with her combat tour in Afghanistan. Her career ended by reason of the subject injuries. Her doctors never released her for regular duty after the subject surgery. Plaintiff’s military career ended when she was evaluated as permanently disabled and discharged by reason of her disability two years later.

The defendant primary surgeon and co-defendant assistant surgeon settled the case for a total of $950,000 at mediation.