Virginia Wrongful Death Case Alleging Medical Malpractice Settles During Trial

A Virginia wrongful death case alleging medical malpractice was recently settled during trial by the attorneys of Pierce & Thornton. The facts of the case involve the death of a 46 year old mother of five. She underwent a laparoscopic supracervical hysterectomy (“LSH”), a procedure where the uterus is removed but the cervix is preserved, in October 2009. During the procedure, defendant gynecological surgeon caused a 5 mm perforation in the decedent’s small bowel, which went undetected.

While recovering in the post-anesthesia care unit (“PACU”), the patient had difficulty with deep breathing and abdominal pain that was characterized as “gas pains.” The nurses and on-call physician who examined her in the PACU before discharge reassured her that her complaints were normal and likely related to her abdomen having been insufflated with carbon dioxide during the procedure. On exam in the PACU, the patient was noted to have normal vital signs, no guarding, rebound tenderness or other peritoneal signs. The attending physician advised that she could be admitted overnight if she wished, but the patient opted to leave the hospital. The patient had arranged to recuperate in a local hotel rather than at home because she had young children and a second floor bedroom.

The decedent called the physician’s office at approximately noon the next day and told the triage nurse that she was having continued gas pain and “horrible hot flashes and extreme sweats.” After receiving this message, defendant sent an email back to his nurse advising her to tell the patient to stop taking her Microgestin and “to ride-out the hot flashes.”

After being reassured yet again that her symptoms were consistent with the LSH procedure, the patient was found dead in her hotel bed the following morning. Autopsy confirmed a 5 mm hole in her small bowel, which had caused 450 ml of leakage into her abdominal cavity leading to sepsis, multi-organ failure and death.

Several days later, defendant reviewed the patient’s medical chart and discovered that his operative report was “in error.” Defendant made no addendum or late entry to correct the operative report at that time. Approximately 23 months later, after having performed 200 additional surgeries and after suit had been filed and served upon him, defendant, at the request of defense counsel, drafted a letter to his counsel “clarifying” the surgery he had performed. This “clarified” operative description was provided to defense experts reviewing the appropriateness of defendant’s care.

The clarified operative description described a significantly different procedure compared to the operative report. In total, defendant added twelve new details of the surgery to the clarified report. In the operative record, defendant had described inserting the first trocar through the umbilicus followed by placement of two lower quadrant ports. This was significant because a primary allegation of negligence was that the defendant negligently approached the patient’s abdomen through the umbilicus when he knew that the patient had a history of multiple abdominal procedures, including an umbilical hernia repair, which made adhesive disease likely. The clarified operative report described the first trocar with scope being placed at Palmer’s Point to visualize adhesions in the umbilical area. Another fundamental difference between the two descriptions was the number of incisions made during surgery. In the first operative report, defendant described making 3 incisions for placement of 3 trocars, but in the clarified description defendant described making 4 incisions for placement of 4 trocars. The pathologist who performed the autopsy and two nurses who assessed the plaintiffs’ decedent in the PACU documented 3 incisions on the patient’s abdomen. Defendant did not document ever inspecting the bowel after adhesiolysis in either of the operative descriptions.

The defendant and his medical malpractice insurance carrier did not make any offer in an attempt to settle the case prior to trial.

At trial, the two defense standard of care experts contended that the procedure was performed appropriately and that bowel perforation is a recognized complication of the procedure; and, that the 5 mm bowel perforation was likely not present at the time of the procedure because if it had been, leakage of bowel contents would have been obvious (assuming that the surgeon inspected the area) during the procedure. Plaintiffs countered the latter contention with the pathologist’s testimony that since there was no tissue necrosis at or around the perforation site, the 5mm perforation likely occurred during the surgery.

After the first day of trial, defendant’s insurance adjuster proposed a high/low, which was not accepted. After the fifth day of trial and prior to the close of defendants’ evidence and closing arguments, settlement discussions occurred for the first time. The case was resolved for $1,500,000.

The law firm of Pierce & Thornton specializes in medical malpractice litigation throughout Virginia, including in Norfolk, Portsmouth, Virginia Beach, Hampton, Newport News, Williamsburg, Suffolk, and the Eastern Shore. The firm associates on cases throughout the United States. The attorneys at Pierce & Thornton have nearly 50 years of experience in litigating all types of medical malpractice cases. They have obtained some of the largest jury verdicts and mediation settlements in Virginia over the past several years. We encourage you to contact our firm if you question the medical care rendered to you, a family member, or friend. If we can help you, we will. Your consultation is free.