Physician Legal Review & Commentary: Medical student awarded $1.42 million after improper removal of right ovary and fallopian tube

By Jonathan D. Rubin, Esq. Partner Kaufman Borgeest & Ryan New York, NY

Patrick A. Dolan, Esq. Associate Kaufman Borgeest & Ryan Garden City, NY

Alvin Safran Director of Risk and Claims Management The New York Hospital Medical Center of Queens Flushing, NY

News: A medical student was awarded $1.42 million against a gynecologist for removal of her right ovary and fallopian tube when she was supposed to remove only a cyst on her left ovary. The patient was diagnosed by a gynecologist with a mass in her left ovary, which could possibly grow, rupture, and/or become malignant. The patient underwent surgery to have the cyst on her left ovary removed. Weeks later she continued to complain of pain to the gynecologist, who ignored her complaints. After presenting to a hospital with complaints of pain to the right side of her pelvis, it was discovered the gynecologist had improperly removed the entire right ovary and right fallopian tube.

Background: The patient was a 28 years old and pregnant. She presented to a gynecologist for an ultrasound related to the pregnancy. The ultrasound discovered a mass growing on her left ovary. A month later the gynecologist told the patient the mass was approximately 3 by 2 cm and likely a benign dermatoid cyst. However, the gynecologist warned it could grow, rupture, and/or become malignant. An ultrasound just before the procedure clearly reflected a cyst on her left ovary. In fact, seven sonograms prior to the surgery showed the cyst was on the patient’s left ovary. The patient then underwent the procedure to remove the cyst on her left ovary.

The gynecologist’s operative report, made the following day, noted the right ovary and fallopian tube had been removed. The patient met with the gynecologist three and four weeks after the procedure. During both appointments, the patient complained of pain to her right lower pelvis. The gynecologist failed to advise the patient that her right ovary and fallopian tube had been removed, and she was still suffering from the left ovarian cyst. A week after her final appointment with the gynecologist, the patient called the gynecologist’s office regarding pain in her pelvis but was unable to reach the doctor. She never received a return call. The next day, the patient presented to the emergency department because she no longer could tolerate the pain. A scan showed the pain originated from her left ovarian cyst which had not been removed. It further revealed gynecologist had removed her entire right ovary and fallopian tube.

Patient and her husband sued the gynecologist for medical malpractice and lack of informed consent. The damages claimed included the improper removal of the right ovary and fallopian tube, pain and future surgery of the left ovarian cyst, injury to her marital relationship, anxiety, mental distress, and possible loss of procreation. It was discovered during litigation that the gynecologist had altered two preoperative medical records to indicate patient had complained of right-sided pelvis pain, when in fact, she had not. Attorneys for the gynecologist argued that the patient’s right ovary was enlarged and therefore did contain a cyst, which justified its removal. However, every pathologist and expert called to testify opined that the cyst in her right ovary was the normal cyst that forms in every woman’s ovaries during the monthly ovulation cycle. This cyst disappears naturally within one to two weeks of forming.

The jury found the gynecologist liable for medical malpractice, failure to obtain informed consent, and that the failed informed consent and medical malpractice caused the patient’s injuries. The patient’s new gynecologist has recommended the left ovarian cyst be removed. He warns that if the cyst cannot be removed without removing the left ovary, the patient will be left infertile and must undergo hormone therapy for the rest of her life. He described the procedure by the gynecologist as “overly aggressive in removing the entire tube and ovary.” Accordingly, the jury awarded the plaintiff $1.42 million.

What this means to you: In this instance, the two risk management processes that immediately come to mind are the “timeout” process and the “disclosure” process. In spite of the extensive efforts that have been made to eliminate wrong-side and wrong-site surgery, cases such as this one demonstrate that this adverse event remains a problem. Interestingly, in this case, the jury appears to have brought back a verdict exclusively against the OB/GYN physician that performed the procedure. Certainly a reasonable argument could have been made that the hospital in which the procedure was performed did not have an adequate process in place to prevent wrong-sided surgery and, therefore, is at least partially liable.

In general a timeout seeks to make sure that the procedure about to be performed is for the correct patient, on the correct site and when appropriate, on the correct side. The hospital should have a policy and procedure explaining how a timeout is to be conducted. This policy and procedure will vary from hospital to hospital, but it generally will include the person(s) responsible for leading the timeout, those who participate in the timeout process, how the surgical site is to marked, and who is responsible for marking the surgical site. There are surgical safety guidelines (that include processes for a timeout) put out by numerous organizations including the World Health Organization (WHO). (See the timeout checklist at http://bit.ly/bsGZsP.)

In spite of all of the policies and procedures and guidelines and safeguards that might be put into place, system error and/or human error still can occur. Once an error does occur, the manner in which it is handled is crucial.

When a significant error is discovered, it should be disclosed to the patient as soon as possible. Each hospital should have a disclosure of adverse events policy. Such a policy is a requirement from The Joint Commission. It is also the right thing to do ethically and morally. The actual disclosure policy will vary significantly from hospital to hospital and from state to state. Clearly, state laws that protect disclosure of adverse events from discovery will ease a hospital’s or physician’s hesitancy to discuss such events. There is no good way to disclose an event such as the one being discussed here. The disclosure should focus on apology and immediate health/treatment considerations resulting from the error. Discussion as to what caused the error and what steps will be taken to prevent future errors (if known) are appropriate for disclosure. There is a possibility that a patient may “shut down” after receiving bad news, and it should be determined by the person conducting the disclosure whether the patient is capable of absorbing any further information. If it is determined that the patient cannot absorb any further information, or if unable to answer the patient’s questions, there is nothing wrong with setting up a follow up disclosure session as more information becomes available. In some cases in which the facts have been established, it might be wise to invite the patient to bring his or her attorney to the follow-up disclosure meeting and consider offering to settle the case.

Obviously, risk management and/or the legal department should be notified. The involved physician, if commercially insured, should immediately notify his or her carrier. The medical records department should be notified as well. The original medical record should be sequestered so that it cannot be altered. Any alteration, even with the best of intentions, can be interpreted as spoliation of evidence. A circulation copy for a sequestered record can be made available for those that will need to examine the medical record, as well as for the continuum of care. If the hospital is using an electronic medical record, there must be a process to “lock” the record as close to discharge time as is reasonably practical.

Wrong-sided or wrong-site surgery has been deemed to be a “never event.” One should give serious thought to settling out of court and think twice before bringing such a case to a jury.

Reference

2012 WL 7088777 (Md.Cir.Ct.), 24-C-11-006058 OT.