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Our claims defense team secured a defense verdict in Queens County Supreme Court on behalf of a gynecologist, a urologist, and a hospital in a case concerning a ureterovaginal fistula allegedly arising from a laparoscopic hysterectomy.

The plaintiff was a 51-year old female diagnosed with adenomyosis; a condition where the lining of the endometrium grows into the wall of the uterus causing pain and abnormal menstruation. The patient had a limited response to conservative management and due to the severity of her symptoms, she elected to have a hysterectomy. During the operation, the gynecologist had difficulty separating the ureters from the uterus. The gynecologist was concerned that freeing the ureters may have injured the bladder. She tested the integrity of the bladder using a methylene blue test and called an intraoperative urology consult. The bladder was found to be intact. After confirming that the bladder was not damaged, the consulting urologist evaluated the ureters. He identified an obstructed right ureter and he used a catheter to achieve patency in the ureter. Improved flow was noted and the hysterectomy proceeded without any other incident.

Ten days after the surgery, the patient complained of urinary incontinence. The frequency and volume of the incontinence required the patient to wear diapers. The gynecologist immediately referred the patient to a non-party urologist. Approximately 6 weeks after the referral and multiple visits to the non-party urologist, the patient sought a second opinion at another urology service. The new urologist discovered that the patient had a ureterovaginal fistula causing urinary incontinence. Subsequently, the patient underwent surgeries to repair the fistula and to repair the right ureter.

The patient brought suit against the physicians involved in her care alleging that they had negligently injured her ureter and failed to identify the injury. During the trial, the plaintiff attorney tried to show that the gynecologist had departed from the standard of care by causing injury to the patient’s ureter. Although the patient was informed that an injury to the ureter was a risk of the procedure, a fact which the gynecologist had properly documented in the record during the informed consent process, the plaintiff’s attorney described this as a “smokescreen”. The attorney brought forth experts in both gynecology and urology, both of whom attempted to support the accusation of a medical departure.

In response, the defense was able to inform the jury that the fistula occurred as a result of a thermal injury which cannot be universally prevented. The gynecologist was shown to be conscientious in her care, even stopping the operation to evaluate the patient for a bladder injury and call a urology consult. Because the bladder and ureters were found to be intact, it was argued that a laceration could not have been present, and it was perfectly reasonable to continue with the procedure. An important concept in this case was conveying to the jury that the fistula was not diagnosable during the operation. It was only many days later that the thermally injured ureter and bladder necrotized and evolved into a fistula. The patient’s own course of illness supported the defense’s argument since the patient did not develop incontinence until 10 days post-operatively. The defense also showed that if any delay in diagnosis had occurred, it was related to the outpatient urologist who was not involved in the lawsuit. Critical to the defense of this case, and others like it, is the ability to convey to the jury that bad outcomes do not mean malpractice. In agreement, the jury returned a verdict that the defendants had not departed from the standard of care in this case.

**Although the disposition of this claim predates the formation of EmPRO, the management of the claim was handled by EmPRO’s management company (PRIMMA, LLC). To learn more about the EmPRO story, click here.