As Published In
Settlement: Xxxxxxxx and Xxxxxx Xxxxxxxxxx v. [FA], M.D.; Dr. [AA]; and Phelps Memorial Hospital Center XXXXX/86
Date of Settlement: 9/26/94
Venue: Westchester Supreme
Plaintiff Attorney: Eric Turkewitz, Manhattan, for Charles Silverstein, Manhattan
This medical malpractice action settled for $200,000 before opening arguments. On 6/20/84, Plaintiff, age 37, underwent a hysterectomy for treatment of a fibroid uterus. There was no dispute that the hysterectomy was necessary. A vesico-vaginal fistula formed and Plaintiff began leaking urine from the vagina 2 months after the surgery, requiring surgical repair in 1987 and resulting in permanent stress incontinence. She claimed that she still suffers from urine leakage during sex, which has destroyed her sex life with her husband.
Plaintiff contended that during the hysterectomy, Defendants deviated from accepted medical practice by separating the bladder and uterus using blunt dissection. Plaintiff’s expert would have testified that sharp dissection should have been used to reduce the chance of tearing the bladder. He would have testified that blunt dissection caused a disruption in the blood supply of the bladder wall, due to adhesions between the bladder and the uterus, which led to the formation of the fistula.
Defendants contended that their use of blunt dissection was acceptable and based on their medical judgment. Defendants also argued that if the fistula was caused by the surgery, it would have appeared within a few weeks of the operation and not 2 months later. They contended that fistulas are an unavoidable complication of hysterectomies, especially in the face of pre-existing adhesions. Plaintiff had a Caesarean section in 1974, and Defendants conceded that this caused an increased likelihood of adhesions between the bladder and uterus. During the surgery, the dome of the bladder was perforated (the fistula was in another area of the bladder), requiring repair by a non-party urologist. Defendants disagreed about the cause of this perforation, although their depositions stated that Plaintiff was told that the perforation occurred because of pre-existing adhesions between the bladder and uterus.
Defendants would have argued that Plaintiff was comparatively negligent for waiting 3 years after the hysterectomy to undergo the repair surgery. Defendants also would have moved to preclude testimony about Plaintiff’s current complaints of urine leakage during sex due to her failure to provide medical reports of the condition. Plaintiff contended that she failed to obtain more timely treatment because she is now afraid of doctors. Settlement apportionment: The settlement was paid on behalf of all the Defendants.