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Bowel Injury During Hysterectomy; Risks and Complications Evidence Inadmissible


An OB/GYN surgeon was supposed to perform a hysterectomy on a woman. After the woman was administered general anesthesia, the OB/GYN surgeon, using an open laparoscopic technique, made an incision in the woman’s abdomen. While opening the sheath of the peritoneum, the OB/GYN surgeon smelled fecal matter and suspected that the woman’s bowel had been severed. The OB/GYN surgeon abandoned the hysterectomy and consulted a general surgeon. The general surgeon repaired the bowel, which had been severed nearly in half, by performing a diverting loop ileostomy. Following the surgery, the woman was required to wear a colostomy bag for a short time.

 

The woman filed a medical negligence action against the OB/GYN surgeon, the practice group, and the hospital. Specifically, the complaint claimed that the OB/GYN surgeon breached the duty of care by failing to identify the woman’s bowel prior to cutting it. The complaint did not include an allegation of the breach of standard of care for failure to inform the woman of the risks of the surgery.

 

The woman filed a motion in limine seeking to exclude consent and risk/complications evidence at trial. The Court of Common Pleas of Allegheny County, Civil Division, granted the motion as to lack of consent, as the woman had not raised such a claim in the complaint. However, as to whether a bowel injury was a known risk or complication of the surgery, the trial court denied the woman’s motion in limine and allowed such evidence to be presented at trial.

 

The woman’s medical expert opined that cutting into the colon without proper identification violated the standard of care. The woman’s medical expert stated that numerous complications may arise out of a laparoscopic hysterectomy and that the complications may occur in the absence of negligence.

 

The expert for the OB/GYN surgeon, the practice group, and the hospital testified that the OB/GYN surgeon met the standard of care in performing the hysterectomy. The expert opined that the woman’s injury was a complication of surgery, but the injury did not indicate whether negligence occurred.

 

After a jury trial, the jury returned a verdict in favor of the OB/GYN surgeon, the practice group, and the hospital. Because the admission of the risks and complications evidence was unfairly prejudicial and controlled the outcome of the case, a new trial was required.

 

The Superior Court of Pennsylvania reversed. The court held that the trial court erred by allowing the OB/GYN surgeon, the practice group, and the hospital to admit evidence of the known risks and complications of the surgical procedure in a medical malpractice case that did not involve informed consent claims.

 

The trial court erred by allowing the OB/GYN surgeon, the practice group, and the hospital to admit evidence of the known risks and complications of the surgical procedure in a medical malpractice case that did not involve informed consent claims. The court reasoned that the fact that a patient may have agreed to a procedure in light of the known risks did not make it more or less probable that the physician was negligent in either considering the patient an appropriate candidate for the operation or in performing it in the post-consent timeframe. There is no assumption of risk defense available to a defendant physician which would vitiate the duty to provide treatment according to the ordinary standard of care. The court reasoned that while evidence of risks and complications of the surgical procedure may be admissible to establish the relevant standard of care, in this case, such evidence was irrelevant in determining whether the OB/GYN surgeon acted within the applicable standard of care. The fact that one of the risks and complications of the laparoscopic hysterectomy, i.e., the perforation of the bowel, was the injury suffered by the woman does not make it more or less probable that the OB/GYN surgeon conformed to the proper standard of care for a laparoscopic hysterectomy and was negligent. The evidence would tend to mislead and/or confuse the jury by leading it to believe that the woman’s injuries were simply the result of the risks and complications of the surgery. The court concluded that the risks and complications evidence was immaterial to the issue of whether the OB/GYN surgeon’s treatment of the woman met the standard of care. Accordingly, the court held that the evidence was inadmissible. The court reversed the trial court’s entry of judgment in favor of the OB/GYN surgeon, the practice group, and the hospital and concluded that a new trial without the admission of risks and complications evidence was required.

 

The Superior Court of Pennsylvania reversed the trial court’s entry of judgment in favor of the OB/GYN surgeon, the practice group, and the hospital.

 

See: Mitchell v. Shikora, 2017 WL 1178040 (Pa. Super. Ct., March 29, 2017) (not designated for publication).

 

See also Medical Law Perspectives, December 2016 Report: Gut-Wrenching Pain: Liability Risks Related to Gastrointestinal Disorders

 

 

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