The District of Columbia Court of Appeals recently upheld a $3.5 million malpractice verdict after a 12 day jury trial against a Bethesda, Maryland obstetrician/gynecologist and Sibley Memorial Hospital in Washington, DC. After the verdict against both the doctor and the hospital, Sibley settled with the Plaintiff but the doctor appealed.
The case stemmed from a dilation and curettage (D&C as it is commonly called) during which the OB/GYN inadvertently perforated the Plaintiff’s uterus, causing more than three quarts of toxic bowel content to leak into her peritoneal cavity. The leakage caused her internal organs to be “continually bathed,” as the court called it, in infectious material, which led to multiple permanent complications.
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Facts of Case
After the D&C, the OB performed a laparoscopy to repair the perforation of the uterus and figure out if there were any additional intrusions on the plaintiff. I think that perforations like this are often negligent but they are often swept up in the sometimes nonsensical “known risk” bundle of excuses. So the OB goes in and looks around and tries to fix the perforation. He used the monopolar cautery electrosurgical technique which uses a probe. No one inspected the probe before sticking it inside the woman. It didn’t work. So they switched to a bipolar cautery to cauterize the perforation.
Her symptoms continue unabated. An x-ray showed fluid in her lungs which would make a reasonable doctor include infection as a differential diagnosis. The x-ray also suggested “free air” in the abdomen consistent with bowel perforation. Not sure if the doctor was in denial or what but he instead concluded, without an MRI, that she was suffering from an ileus, a blockage of the small or large bowel.
At some point several days later, her abdomen remains tender and her white cell counts are still heading north which shouldn’t happen when you are on antibiotics. The surgery revealed that she had (big shocker) a perforation in her small bowel. This caused additional surgeries and a host of problems. The jury saw all of this for what it was and awarded $3.5 million.
On appeal, the doctor contended that the verdict sheet was flawed, that there was improper admission of the hospital’s expert testimony, that there was unfair surprise, and that Defendant was entitled to judgment notwithstanding the verdict.
Interestingly, the District of Columbia Court of Appeals found that the verdict sheet was flawed because it did not show which breaches of the standard of care that the jury had found proximately caused Plaintiff’s injuries. The trial judge somewhat understandably, was trying to make what was already a complicated verdict form less complicated by not adding even more questions for proximate cause. However, the court found this was essentially harmless error because it did not really matter that the jury did not specify which negligent act was a proximate cause because any of the negligent acts could have been the proximate cause (proximate cause and injury was nailed down in other questions to the jury).
This District of Columbia’s Court of Appeals’ 31-page opinion can be found under Townsend v. Donaldson on the court’s website. If you read the case, one of the things you will find interesting is that the hospital and doctor depart from the usual “malpractice defendants stick together at all costs” game plan to the point where the hospital’s expert expressly opines that the doctor negligently failed to notify the subsequent treating doctor about issues relevant to the care of the patient. Plaintiffs’ malpractice lawyers rarely get to enjoy that experience but it it delightful when it does happen.