Mary Kay Scott and Christopher Leach obtained a not guilty verdict for a defendant gynecologist in 40 minutes after eight day trial

Tried 09/14/22 – 09/23/22

Mary Kay Scott and Christopher Leach represented a defendant obstetrician gynecologist in a case brought by a plaintiff regarding an alleged injury to the ileum during a DaVinci Robotic surgery.  The plaintiff was a 57 year old with claims of ongoing bleeding with pain for years. The patient was referred by the plaintiff’s primary care physician to the gynecologist due to an ultrasound which identified multiple large uterine fibroids in the uterus.  The patient had the first office visit with the gynecologist on May 11, 2015, and the patient wanted definitive treatment.  The gynecologist recommended an endometrial biopsy to confirm the bleeding was not due to cancer.  The patient was consented for the surgery, initially a laparascopic surgery  due to the potential for adhesions due to 3 prior emergency open surgeries, 2 ectopic pregnancies and an appendectomy.   The plan for removal of the uterus and ovaries was by DaVinci Robotic surgery, and the potential for a mini-laparatomyThe consent included bleeding, infection, and injury to other organs both known and unknown.  The gynecologist recommended an endometrial biopsy to confirm the bleeding was not due to cancer.  That was biopsy was performed in the office, and pathology showed benign findings.  The patient was seen back in the office and again advised of the risks of the surgery.  She had the surgery on June 10, 2015, at a hospital and the surgery was a same day surgery.  The surgery proceeding with laparascopic surgery and takedown of adhesions in the area of the surgery, while leaving adhesions outside the area in place as per the standard of care.  Then the surgery proceeded to robotic surgery, with the uterus removed, and the ovaries and remaining fallopian tube removed. For the robotic portion the patient was placed in steep Trendelenburg, with the feet up and head down as far as the table will allow.  During the robotic surgery the area of the surgery was visualized by 3 cameras docked to the robot.  There was no sign during that portion of the surgery of any injury to the bowel, and no contents of the bowel were present.     The ovaries and fallopian tube was able to be removed through the vagina, but the large bulky uterus could not be removed due to the size.  Therefore, the robotic portion of the surgery was stopped and the robot was undocked, and the patient moved to a flat position in preparation for a mini-laparatomy at the level of the pubic bone.  There was no issue delivering the uterus, and the pathology report after surgery noted no bowel contents known as succus entericus on the uterus.  The patient was closed after the mini-laparatomy, and sent to the PACU. She was discharged from the PACU later that day without complaints.  Later that evening she began to have pain, and was taken to Franciscan Health in Hammond, Indiana, and the defendant gynecologist was called by the ER, and arranged transfer back to the hospital where surgery was performed.  A CT Scan was arranged on arrival, and a general surgeon was on alert to the incoming patient.  The CT scan revealed the tear in the ileum, and the patient was operated on the day of arrival.  The wound was left open to heal from below and a wound vacuum was placed to aid in healing. She regained bowel function in the hospital, and was eating and ambulating.  The wound healed, and she was discharged by the general surgeon on September 1, 2015, and was free to undertake all activities.  She told the general surgeon as documented in his chart that she “felt great”.

The plaintiff’s opinion witness claimed there was an injury away from the surgery due to failure to visuallize  the instruments at all times.  His position was that led to the injury, but he agreed the surgery was needed and appropriate, and that the consent was for injuries to other organs both known and unknown.  Further the plaintiff’s opinion witness stated that the plaintiff’s  smoking and obesity  were risk factors for the hernias, as did all other physicians who testified. The plaintiff’s expert stated the injury was nowhere near the ileum, while all the other physicians stated the ileum is next to the area of the surgery. The defendant’s opinion witness testified that the standard of care was met in all regards. Further, that physician testified that the instruments are seen in the field of surgery, but cannot be seen above the area of surgery for short amounts of time. The opinion witness testified that the movement from steep Trendelenburg caused the injury to the bowel, with the upper abdomen adhesions that were present adhering the bowel to the abdominal wall causing the tear.  Further, the lack of bowel contents seen during surgery and on pathology let to the opinion that the timing of the injury was late in the procedure during re-positioning after the patient was undocked from the robot.   The defense opinion witness stated that the ileum was in the area and had adhesions.

The plaintiff claimed twinges of pain, but had not seen a physician related to the bowel since September 1, 2015.  Plaintiff did not submit medical bills or lost wages.  She had a double hernia in 2017, which was surgically repaired and claimed as an item of damages.  The plaintiff  claimed she could no longer roller skate or dance as she did before.  The plaintiff counsel asked for $750,000 in damages as follows:   $150,000 for disfigurement, $150,000 for past pain, $150,000 for past suffering, $75,000 for future pain/suffering, $150,000 for loss of normal life, and $75,000 for future loss of normal life. The defense position was that the injury did not occur due to negligence, and that given 5 surgeries to the abdomen no one could state to a reasonable degree of medical certainty that the hernias were related to the surgery.