Diverticulitis Colon Resection Case

EXAMPLE OF AN EXPERT WITNESS REPORT IN A MEDICAL MALPRACTICE/MEDICAL NEGLIGENCE CASE BROUGHT AGAINST A SURGEON AND HOSPITAL IN A SURGERY INVOLVING THE REMOVAL OF A COLON DUE TO ALLEGED DIVERTICULITIS

The law firm of Hixson & Brown filed suit on behalf of a client who had her colon unnecessarily removed for suspected diverticulitis or suspected widespread diverticulosis. After removal of the colon, the client suffered post surgical complications of hypovolemic shock, infection, sepsis and extreme pain exacerbations. Due to medical negligence, the physician failed to timely take the client back to surgery. Ultimately, the patient lost approximately 2/3rds of her small bowel and was left with short gut syndrome.

Detailed Expert Report Provided By Surgical Expert Hired By Hixson & Brown Law Firm On Behalf Of The Client: The following is a verbatim copy of a surgical experts' report in the case of medical malpractice against the physician and the hospital. The name of the client as well as the name of all physicians and the defendant hospital have been redacted.

Begin Medical Expert Opinion:

"After reviewing the medical record of the patient along with the above described information, based upon my education, training and experience, I hold the following opinions within a reasonable degree of medical certainty within my profession:

In caring for the patient, Defendant Doctor breached the standard of care [committed medical malpractice] in the following respects:

  • A. In diagnosing the patient with diverticulitis in August and September of 2010, when the clinical signs and symptoms, along with the available labs and CT scans did not warrant such a diagnosis;
  • B. In failing to perform necessary diagnostic testing to rule out diverticulitis and to reveal that the patient's pain was being caused by her ovarian cyst;
  • C. In failing to inform the patient that she had a left ovarian cyst that was likely the cause of her left lower quadrant pain;
  • D. By failing to recommend the removal of the patient's left ovarian cyst before removing her colon or, in the alternative, by failing to refer the patient to a gynecological expert so she could receive appropriate care and treatment for her ovarian cyst;
  • E. In failing to obtain necessary and appropriate informed consent before performing a subtotal colectomy;
  • F. In recommending the removal of the patient's entire colon;
  • G. In performing an unnecessary surgery on the patient and during such procedure unnecessarily removing her entire colon;
  • H. In failing to send the patient's ovary and ovarian cyst for pathological examination;
  • I In failing to inform the patient that he had removed an ovarian cyst and the patient's left ovary during the surgery on 9/10/10.
  • J. Postoperatively, by failing to appropriately and timely resuscitate patient when her clinical picture on 9/10/10 and 9/11/10 reflected she was suffering postoperative hemorrhagic or hypovolemic shock;
  • K. By failing to timely and appropriately determine that the patient was suffering from a surgical bleed that required surgical intervention;
  • L. By failing to timely and appropriately determine that the patient was likely suffering from an anastomotic leak that required surgical correction;
  • M. By over-medicating the patient with pain medications that masked her ever increasing pain and the fact that she had an acute abdomen by 9/17/10;
  • N. By over-medicating the patient with acetaminophen that masked her fever and the fact that she had an abdominal infection likely due to an anastomotic leak by 9/17/10; and
  • O. By failing to appreciate that patient was on antibiotic therapy that was likely masking her WBC and by failing to appreciate the patient's "left shift" was likely revealing an infection in her abdomen by 9/17/10.

The above breaches in the standard of care [medical negligence] can be broken down into three distinct areas. The first area deals with the lack of medical criteria to justify removal of patient's colon in the first place. The second area deals with the immediate postoperative period during which the patient was in shock and there was inadequate resuscitation of the patient. The third area deals with Defendant Doctor's action or inaction in failing to take the patient back to surgery long before 9/23/10. Each of these areas will be addressed separately and in order.

I. DEFENDANT DOCTOR BREACHED THE STANDARD OF CARE IN REMOVING PATIENT'S ENTIRE COLON FOR SUSPECTED DIVERTICULITIS

Before beginning, I want to be clear. Defendant Doctor had no medical justification whatsoever to recommend or to remove patient's colon on 9/10/10. To understand this it is helpful to understand what is diverticulitis, including its signs and symptoms. These include the clinical signs, laboratory findings and radiographic findings.

A. WHAT IS DIVERTICULITIS?

1. As will be discussed in more detail later, the pathologist, [treating physician], found no evidence of any perforation of any diverticulum in Patient's colon.

The following description of diverticulitis is provided in Up-To-Date:

Diverticulitis - Diverticulitis represents micro- or macroscopic perforation of a diverticulum. The primary process is thought to be erosion of the diverticular wall by increased intraluminal pressure or inspissated stool within a diverticulum; inflammation and focal necrosis ensue, resulting in perforation.

A small perforation may be walled off by pericolic fat and mesentery. This may lead to a localized abscess or, if adjacent organs are involved, a fistula or obstruction. In comparison, poor containment results in free perforation and peritonitis.

The clinical presentation of diverticulitis depends upon the severity of the underlying inflammatory process and whether or not complications are present. Complicated diverticulitis refers to the presence of an abscess, fistula, obstruction , or perforation while simple diverticulitis refers to inflammation in the absence of these complications.

B. CLINICAL SIGNS OF DIVERTICULITIS:

Some of the clinical signs and symptoms of diverticulitis are identified as follows:

1. Typically present with left lower quadrant pain.

2. Physical exam usually discloses localized tenderness in the area of the diverticulitis.

3. Fever will be present in the majority of patients with active diverticulitis

4. The white blood cell (WBC) count is frequently elevated.

With respect to these clinical signs and symptom of diverticulitis, Defendant Doctor agreed and testified as follows:

  • Q. Doctor, would you agree with the statement regarding clinical features of diverticulitis that typically they present with left lower quadrant pain?
  • A. Correct.
  • Q. May have change in bowel habits, diarrhea, constipation?
  • A. Correct.
  • Q. May have nausea or vomiting?
  • A. Correct.
  • Q. Localized tenderness in the area of the diverticulitis?
  • A. Correct.
  • Q. Bowel sounds are typically depressed?
  • A. Can be.
  • Q. Is it typical or are you just saying it can?
  • A. Yeah.
  • Q. Typically they can be?
  • A. Typically.
  • Q. Fever's present in a majority of patients?
  • A. I'm not sure that's true. I mean, I'm not sure that the majority have -- at least don't have a persistent fever, let's put it that way. Don't have a persistent, they're feverish all the time. Maybe they feel warm at a time or two, but it's not a persistent thing.
  • Q. Okay. Other than being persistent, do a majority of patients have some evidence of fever at some point, to your knowledge?
  • A. At some point.
  • Q. And that's at some point when they have the acute or active diverticulitis; correct?
  • A. Active process, yes.
  • Q. And do you agree with the statement that the white blood cell is frequently elevated?
  • A. Frequently, but not always.
  • Q. And once again, it's frequently elevated because of the infection that's going on in the diverticula; correct?
  • A. Correct.
  • Q. And these items that I've just discussed as clinical features of diverticulitis, are these items that you use in your practice to confirm or diagnose diverticulitis?
  • A. Correct.

(Defendant Doctor Depo., pp.28-30).

C. RADIOGRAPHIC FINDINGS CONSISTENT WITH DIVERTICULITIS:

In addition to clinical signs and symptoms, radiographic testing is also utilized in the diagnosis of diverticulitis. With respect to patient's case, two pre-operative CTs were obtained. With respect to radiographic evaluation of diverticulitis by CT, the following is provided in Up-To-Date:

CT scan - Computer tomographic (CT) scanning of the abdomen with IV and oral contrast is the diagnostic test of choice in patients suspected of having acute diverticulitis. It is useful for diagnosis, assessment of severity, therapeutic intervention, and quantification of resolution of the disease. The sensitivity, specificity, positive, and negative predictive values of helical CT (with colonic contrast only) were 97, 100, 100, and 98 percent, respectively, in a study that included 150 patients presenting to the emergency department with clinically suspected diverticulitis.

CT features of acute diverticulitis include:

· Increased soft tissue density within pericolic fat, secondary to inflammation - 98 percent

· Colonic diverticula - 84 percent

· Bowel wall thickening - 70 percent

· Soft tissue masses representing phlegmons, and pericolic fluid collections, representing abscesses - 35 percent

***

CT also stages the extent of pericolic inflammation, which was underestimated by contrast barium enema in 41 percent of patients in one series. Findings on CT have been classified as mild (localized colonic wall thickening and inflammation of pericolic fat) or severe (abscess, extraluminal air, or water soluble contrast); the latter findings have been used as criteria for offering elective resection to patients after successful conservative management. They also predict an increased risk of failure of medical treatment during the first admission.

Up-To-Date, "Clinical Manifestations And Diagnosis Of Colonic Diverticular Disease," last updated: 9/28/10. As will be discussed in more detail below, patient never had any CT findings warranting a diagnosis of "severe" or "complicated" diverticulitis and, did not have the necessary medical criteria for Defendant Doctor to "offer elective resection" of her colon.

D. MEDICAL EVIDENCE DID NOT SUPPORT THE REMOVAL OF PATIENT'S ENTIRE COLON.

I have reviewed the report and deposition of the pathologist, [treating physician], who performed the initial macroscopic and microscopic examination of patient's colon. Based on [treating physician's] gross examination, there was evidence of diverticulosis, but no evidence of diverticulitis. His microscopic and macroscopic examinations also did not reveal any evidence of a perforation of a diverticulum and no evidence of an acute or active infection. This was similar to the findings of [treating physician], the pathologist at the University of Nebraska Medical Center, who examined the pathology slides for patient in conjunction with her care at UNMC. [Treating physician's] report indicated that he did not find any pathological evidence of diverticulitis. Lastly, the findings of these pathologists is confirmed by the report of [Expert hired by Hixson & Brown], the expert pathologist from one of the Harvard Medical School-affiliated hospitals, who indicates that the pathology slides for patient did not reveal any evidence of diverticulitis.

Thus, in hindsight we know that patient's bowel did not exhibit any pathological evidence of diverticulitis. However, that is not the question that needs to be answered. What must be evaluated is whether or not the patient had the necessary signs and symptoms of diverticulitis to support Defendant Doctor's recommendation and decision to remove her entire colon. For the reasons set forth below, there was insufficient medical evidence to support Defendant Doctor's recommendation to remove the patient's colon and insufficient medical evidence to support the actual removal of the colon.

1. 7/24/10 Hospitalization:

Patient was hospitalized on 7/24/10 "with abdominal pain, especially in the lower left quadrant and some in the lower right quadrant.". The physical exam by the patient's primary care physician revealed the following:

ABDOMEN: Protuberant with pain in the lower left quadrant, rebound tenderness with guarding and rigidity. No bowel sounds. No trajectory pain to the top of the shoulders or to diaphragm. Negative Cullen's, Lloyd's, or Murphy's signs.

There is no mention of any abnormal findings in the patient's right upper or lower quadrants. The Abdominal Pain Assessment Sheet completed by nursing indicted that the patient had no guarding and no rebound tenderness. The nurse also documented hypoactive bowel sounds with abdominal pain only in the "LLQ." Based on the clinical examination and history, diverticulitis was suspected and further tests were ordered. In addition, a consultation with Defendant Doctor, a general surgeon, was requested.

An abdominal CT was performed on 7/24/10, which revealed the following:

Abdomen: Low dense liver consistent with fatty infiltration. *** Cyst superior pole right kidney. ***

Pelvis: There is mural thickening with a focal area of low density in the cecum with a focal diverticulum present. Pericolonic fat stranding is also identified. The presence of focal diverticulitis should be considered. See axial image number 52 coronal image number 26. Focal mural thickening is also identified closer to the hepatic flexure and is a nonspecific finding which may represent another segment of inflammatory change. Coronal image number 19 and axial image number 48. Surgical clips are present in the abdomen. Sigmoid colon surgery is identified. No free air is identified. There is a left ovarian cyst the uterus is absent.

The abdominal wall has a normal appearance~ Minimal degenerative changes of the lumbar spine are present.

IMPRESSIONS: Mural thickening and fat stranding in the right colon in two places. Consider diverticulitis. Additional imaging may be necessary to rule out other pathology

The thickening of the colonic wall and inflammatory changes could be representative of "mild diverticulitis." There was no evidence of abscess, fistula or any other CT findings that would indicate that the diverticulitis was "complicated" or "severe." I have reviewed the expert report of [Expert hired by Hixson & Brown law firm], which states the following with respect to the 7/24/10 CT scan:

There is evidence for surgical anastamosis in the sigmoid colon in the pelvic region. There are few surgical clips noted in the lower abdomen-pelvic region. There is scattered diverticuli in the colon. In the cecum/ascending colon region, focal thickening of the colonic wall with mild regional pericolonic inflammatory fat stranding is observed along with presence of few diverticuli in this region. The length of the focal thickening measures approximately 5 cm. These findings are most suggestive of a mild right sided diverticulitis. There is no evidence for a free air or fluid collection in the abdomen. Rest of the colon shows no obvious changes of inflammation.

Additionally, there is a cyst in the left ovary measuring about 3.8 cm without any enhancing mass or discernable septations. This could be physiologic cyst in a menstruating woman but in a post menopausal woman, a pelvic ultrasound exam can be considered to evaluate the character of this lesion.

A simple cyst measuring about 5 cm is also seen in the right kidney. Liver appears slightly lower in its attenuation which could be attributed to underlying fatty changes or steatosis.

Based on the above, the patient's differential diagnosis would have included mild diverticulitis, left ovarian cyst or possibly ovarian torsion. These CT findings needed to be considered along with the clinical findings and any available laboratory evidence.

With respect to the CT scan and the clinical findings, possible diverticulitis in the ascending colon provided no explanation for the patient's left lower quadrant pain. The CT scan found no evidence of problems in the left lower quadrant, except for the 3.8 cm ovarian cyst. Laboratory studies revealed normal WBC and Neutrophils (no signs of infection). In addition, on admission, the patient's temperature was 98.5 and she remained afebrile during the entire hospitalization. At this point in time, the best explanation for the left lower quadrant pain was the left ovarian cyst.

During the patient's hospitalization, there is no documentation of RLQ or RUQ pain upon examination by any medical care provider. In fact, it appears that the physician who saw the patient on 7/25/10 realized the questionable diagnosis of diverticulitis stating the following in his physician note:

  • CT scan = Diverticulitis.
  • Pain is some better.
  • Soft ABD with little rebound.
  • The CT abdomen shows possible pathology
  • Undetermined - needs scope & MRI.

On 7/26/10, the patient was seen in the hospital by Defendant Doctor. Defendant Doctor's note states:

Imp: 1) Acute Diverticulitis, resolving on antibiotics. Needs colonoscopy in 6-8 weeks to eval extent of disease and to R/O co-existing pathology.

With respect to this hospital visit, Defendant Doctor testified that he reviewed the 7/24/10 CT scan and was aware of the left ovarian cyst as well as the CT scan revealing significant findings only in the right colon. He testified:

  • Q. And just so our record's clear, I know we talked about the cyst, you not appreciating it.
  • As you sit here today, do you recall if when you read this CT of 7-24 of '10, do you recall today whether or not you saw, at the bottom, that there was a left ovarian cyst?
  • A. Yes.
  • Q. So you did see it?
  • A. Yeah. It was part of the reason why I went and looked at the CT scan, because of the fact that he hadn't -- hadn't indicated a size with it, to see. And it was, to me, on the CT scan, as I recall, it was hardly noticeable, so it was a small cyst.
  • ***.
  • Q. Okay. So regardless of what you looked at, when you went back to the CT, you knew that basically all of her findings were on the right side of her colon, her radiographic findings?
  • A. Correct.

Defendant Doctor's testimony regarding his knowledge about the cyst at this time along with his knowledge of its size is confusing and questionable at best. Although Defendant Doctor said the cyst was "small", [Expert hired by Hixson & Brown law firm] report reflects that the cyst measured 3.8 cm on both the 7/24/10 and 8/2/10 CTs. This is not a "small cyst." In addition, elsewhere in his deposition Defendant Doctor testified that he did not "appreciate" the cyst until the surgery that took place on 9/10/10. This seems to be confirmed by the wording of the 9/10/10 operative report which states: "With exposure down to the pelvis, it was apparent there was a small left ovarian cyst present." (p.0229). Furthermore, in his ER report on 8/2/10, [treating physician] stated:

Defendant Doctor has seen her in consultation and states this is the only thing that is probably wrong, because she does not have any of the female organs.

Such a statement by Defendant Doctor to [treating physician] would be inconsistent with Defendant Doctor having knowledge of the patient's left "ovarian" cyst. However, even if he did "appreciate" the cyst on 7/26/10 when he saw the patient and even if he did believe it was "small", Defendant Doctor acknowledged that even small cysts could be painful.

In spite of the fact that Defendant Doctor was aware (by his own report) of the ovarian cyst on 7/26/10 and was aware that the ovarian cyst was in the area of patient's LLQ pain, he failed to inform the patient of the cyst. More importantly, he failed to inform the patient that the ovarian cyst could be causing her pain and he failed to include it in his differential diagnosis. All of these failures were negligent and were breaches in the standard of care / medical malpractice.

Given the patient's clinical findings during the hospitalization from 7/24/10 - 7/26/10 and the CT findings confirming a 3.8 cm ovarian cyst in the exact area of the patient's pain, the most likely source of her LLQ pain was the ovarian cyst along with a possible ovarian torsion. This finding should have prompted Defendant Doctor to refer the patient to a gynecologist for appropriate follow-up on the ovarian cyst. Defendant Doctor's failure to make this diagnosis and failure to refer the patient were negligence and were breaches in the standard of care / medical negligence.

It also appears that Defendant Doctor failed to take an adequate history from the patient. As noted above, in his ER report on 8/2/10, [treating physician] stated:

 

  • CC: The patient comes in today, complaining of left lower abdominal pain.
  • HPI: Patient states that she has had this pain off and on for several months. She states, yesterday, she had a lot of stomach pain. She states she has had trouble in the past with ovaries on her cysts and she has also had history of diverticulitis. ... Patient had hysterectomy in February 2008 and had her right ovary removed. The left ovary was preserved. Her last bowel movement was yesterday. She usually does have a bowel movement daily. Patient describes the pain as sharp. ...
  • Physical Exam:
  • ... Pelvic exam is benign. There is no recreation of discomfort when the adnexa, left or right is palpated.
  • ABDOMEN: Exam shows tenderness in the left lower quadrant, more consistent with where the sigmoid colon is.
  • ASSESSMENT: Likely diverticulitis.
  • PLAN: Flagyl 100 mg three times a day times 10 days...

If Defendant Doctor had taken an adequate history from the patient, he would have known that the patient had a history of having trouble with ovarian cysts. He also would have confirmed that the patient still had her left ovary, which was contrary to the statement that Defendant Doctor made to [treating physician] as noted above.

2. 8/2/10 Hospitalization:

Patient next presented to the ER on 8/2/10 at 1520 hours after being seen in the office of her family physician for complaints of abdominal pain. The family physician questioned diverticulitis and sent the patient to the hospital for another CT scan. Id. A CT scan was performed on 8/2/10 and the radiologist's report provides:

  • Pelvis: The inflammatory change identified in the right colon appears to clear. There is a new focus of increased density in the sigmoid colon adjacent to and proximal to the GI staples. Pericolonic fat stranding is also seen. There is no change in the left ovarian cyst.
  • IMPRESSIONS: Resolution of the inflammatory change in the right colon. New inflammatory change in the left colon adjacent to the GI staples on image 65 through 69.

Of significance, contrary to the 7/24/10 CT report, this time the radiologist made no finding of diverticula, made no finding of thickening in the colonic wall and does not include "diverticulitis" as a possible radiologic diagnosis. With respect to this same CT scan, the report of [Expert hired by Hixson & Brown law firm] states the following:

Resolution of focal colonic thickening and pericolonic changes on the right is observed. The thickness of the colon near the cecum is now within normal limits. Minimal strandiness in the fat near the cecum and a few small lymph nodes (not enlarged by radiologic criteria) in the vicinity persists. Strandiness in the fat adjacent to the sigmoid colon that extends along the pelvic side wall is now observed without any signs of thickening of the colonic wall in this area. There is no fluid collection or abscess in the abdomen and pelvis.

Additionally, the cyst in the left ovary measuring about 3.8 cm without any enhancing mass or discernable septations remains grossly unchanged. This could be physiologic cyst in a menstruating woman but in a post menopausal woman, a pelvic ultrasound exam can be considered to evaluate the character of this lesion.

A simple cyst measuring about 5 cm is also seen in the right kidney. Liver appears slightly lower in its attenuation which could be attributed to underlying fatty changes or steatosis.

The patient was seen in the hospital on 8/3/10 by Defendant Doctor and his note states the following:

  • Pt. known to me from previous consultation re suspected R sided diverticulitis. Now presents with more pain L LQ. Previous sigmoid resections for diverticular disease. CT scan c/w diverticulitis without evidence abscess/perforation. Admitted for IV antibiotics.
  • PE: afebrile. VSS. Abd. tender L LQ without peritoneal signs. Labs: Hgb: 13.7; WBC: 7,000 with 59 segs.
  • Imp.: Acute Diverticulitis, L sided.

Once again, Defendant Doctor's note makes no mention at all of the 3.8 cm ovarian cyst that is in the exact area of the patient's LLQ pain. This is in spite of the fact that the patient does not exhibit any signs of infection (no fever, normal WBC, normal segs) or acute abdominal signs that one would usually expect with active or acute diverticulitis. Defendant Doctor testified accordingly:

  • Q. *** Based on your review of the abdominal CT, did you see any inflammation or mural thickening in the right ascending colon --
  • A. No.
  • Q. -- on the 8-2 of '10 CT?
  • A. Sorry. No.
  • Q. So in that respect you would agree with the radiologist's findings?
  • A. Yes.
  • Q. And the radiologist now indicates that there's a new inflammatory change in the left colon adjacent to the GI staples; correct?
  • A. Correct.
  • Q. And that would be the area that you've identified on Plaintiff's Exhibit 5 in red on the bottom of the descending colon; correct?
  • A. Correct.
  • Q. Now, in the CT done on July 24th, the radiologist, you understand they have diagnostic criteria that they use in reaching a possible radiology diagnosis; correct?
  • A. Correct.
  • Q. And in using the radiologist's diagnostic criteria, the radiologist indicated possible diverticulitis; is that right?
  • A. On July 24th he indicates the presence of focal diverticulitis should be considered.
  • Q. All right. Doesn't say that he found it, just said that's something you ought to consider; correct?
  • A. Correct.
  • Q. Now, on the 8-2 of 2010 CT, when you reviewed his report, you were aware that he didn't mention diverticulitis at all?
  • A. Correct.
  • Q. And that he had mentioned it in his previous report; correct?
  • A. Correct.
  • Q. So did that tell you, from a radiology diagnostic criteria standpoint, the radiologist didn't have enough to suspect diverticulitis?
  • A. He didn't have enough -- for instance, on that first exam from 7-24, he had seen a diverticulum, so obviously that gave him the leeway to call it as that. Whereas in the other, he doesn't see any diverticulitis. So no, he's not mentioning diverticulitis.
  • Q. And when you went back and looked at the slides or images, and I think he references images 65 through 69 showing the inflammatory change, I assume you looked at those slides or images?
  • A. Yes.
  • Q. And would you agree that you couldn't see any diverticula in those images?
  • A. Correct.
  • Q. Did you have any discussion with the radiologist regarding his findings?
  • A. No.
  • Q. Didn't talk to him at all about why he didn't include diverticulitis this time?
  • A. No. He's not here.
  • ***
  • Q. Now, your August 3rd of 2010 doctor progress note indicates -- it says PE, physical exam, I assume; right?
  • A. Correct.
  • Q. Afebrile meaning she doesn't have a fever; right?
  • A. Correct.
  • Q. When you say without peritoneal signs, can you tell me what you mean by without peritoneal signs?
  • A. Didn't have percussion tenderness, didn't have rebound -- positive rebound testing.
  • Q. No rigidity?
  • A. No rigidity, right.
  • Q. Now, you indicate, on the labs, you specifically mention out of the labs that were drawn, her white blood cells of 7,000 and her segs --
  • A. 59.
  • Q. -- of 59. Now, why do you specifically point those out out of all the labs?
  • A. Well, the white blood count is there as being followed as an indicator of level of infection or of infection, as well as the differential. The segs, segment and neutrophils, are really the one that help determine the amount of left shift, if you will, that point more and more to active infection.
  • Q. Okay. And so you were pointing out these labs to show, at least from a laboratory standpoint, there were no signs of an active infection?
  • A. Correct. On that laboratory test.
  • Q. And at this time would you also have been aware of the prior labs done in July, which also showed no active infection?
  • A. Yes.
  • Q. So as of 8-3 of 2010, you knew that, based on both these hospitalizations, no labs had shown an active infection in patient?
  • A. Yes.
  • Q. And you would have been aware that at least up until this time there was no evidence of any signs of fever?
  • A. Correct.

Based on the above, Defendant Doctor was negligent and breached the standard of care [committed medical malpractice] in diagnosing the patient with "Acute Diverticulitis - left sided" on 8/3/10. Although the CT showed "strandiness in the fat" in the distal colon, there was no radiographic evidence of thickening of the colonic wall. Strandiness in the fat alone is insufficient to support a radiologic diagnosis of diverticulitis. Although 84% of CT's will show evidence of colonic diverticula when diverticulitis is present, the 8/2/10 did not show any. See, Up-To-Date, "Clinical Manifestations And Diagnosis Of Colonic Diverticular Disease," last updated: 9/28/10. Although 70% of CT's will show evidence of bowel wall thickening when diverticulitis is present, the 8/2/10 did not show any. Id. In addition, the patient's abdominal exam was rather insignificant with no percussion tenderness, no rebound tenderness and no rigidity. Lastly, the patient was afebrile and her labs showed no evidence of infection.

Once again, in spite of the fact that Defendant Doctor was reportedly aware of the ovarian cyst from the 7/26/10 CT and now from the 8/2/10 CT scan and was reportedly aware that the ovarian cyst was in the area of patient's LLQ pain, he failed to inform her of the cyst. More importantly, he failed to inform her that the ovarian cyst could be causing her pain and he failed to include it in his differential diagnosis. These were all breaches in the standard of care / medical negligence.

Given the patient's clinical findings during the hospitalization from 8/2/10 - 8/5/10 and the CT findings confirming a 3.8 cm ovarian cyst in the exact area of the patient's pain, the most likely source of her pain was the ovarian cyst along with the possibility of ovarian torsion. Once again, this finding should have prompted Defendant Doctor to refer the patient to a gynecologist for appropriate follow-up on the ovarian cyst. Defendant Doctor's failure to make this diagnosis and failure to refer the patient were negligent and were breaches in the standard of care / medical negligence.

On 8/26/10 the patient presented to the office of Defendant Doctor "with some continued discomfort in the left lower quadrant area." Defendant Doctor performed a physical examination and the findings were as follows:

  • PHYSICAL EXAMINATION:
  • VITALS: On examination today, vital signs include temperature of 97.8, pulse 80 and regular, respiratory rate 18, and blood pressure 120/80.
  • ABDOMEN: The abdomen is actually fairly soft, with active bowel sounds. She is tender to deeper palpation in the left lower quadrant. No masses or organomegaly are appreciated.

Defendant Doctor's note then reflects the following impressions and plan of care:

  • IMPRESSION:
  • Recurrent diverticulitis, slowly resolving on continued antibiotic therapy.
  • PLAN: A long discussion is carried out with the patient and her husband regarding therapeutic options. Given her ongoing problems, it may well be that she ends up progressing to needing a subtotal colectomy to deal with the diffuse and entire involvement of her colon with diverticular disease.
  • At this point, I think it is worthwhile to give her another two weeks of antibiotic therapy and she is given prescriptions for Cipro 500 mg twice a day and Flagyl 500 mg three times a day for the next two weeks. I will then see her again in two weeks to evaluate the results of this therapy and the need for further evaluation and/or definitive intervention. *** Given the smoldering nature of her diverticulitis, I do not think it wise at this point in time to consider performing colonoscopy for fear of making the situation even worse. Certainly, when she returns in two weeks, if she does have ongoing symptomatology, then consideration would be given to performing repeat CT scanning to evaluate the extent of her disease. Again, she may well end up heading to surgery for definitive surgical treatment.

As noted extensively above, there was insufficient medical findings to support a conclusion of "recurrent diverticulitis." Even utilizing Defendant Doctor's own criteria for diagnosing diverticulitis, there was a paucity of findings to even suspect diverticulitis. More importantly, the only significant finding that the patient had on 8/26/10 is the tenderness to deep palpation in the area of her left ovarian cyst. On this, Defendant Doctor testified:

  • Q. Right? Okay. So when you did your exam, she didn't have any evidence of peritoneal inflammation that would be potentially tender to lighter touch; correct?
  • A. Correct.
  • Q. And you said you're palpating over the entire abdomen. And is that your practice, to palpate the entire abdomen to see where we have complaints of pain or problems?
  • A. Yes.
  • Q. And if you have a complaint of pain or a problem, then you would document that as a significant finding in your record; correct?
  • A. Correct.
  • Q. And so in this case the only place that you indicated that she was tender was on deep palpation in her left lower quadrant; right?
  • A. Correct.
  • Q. And you would agree with me that that left lower quadrant would be in an area that would also include her ovarian cyst; correct?
  • A. Yes.
  • Q. Can you tell me, if you recall, Doctor, when you did this physical examination, while you were doing the examination, did you have a recollection at that time that, hey, the CT had shown an ovarian cyst down there?
  • A. I'm not sure if I specifically had that recollection.
  • Q. When you found that she was tender to deep palpation on the lower left quadrant, did you have any discussion with patient on 8-26 of '10 that this deep tenderness could be related to the cyst, ovarian cyst down there?
  • A. No.

Whether Defendant Doctor had a recollection of the ovarian cyst or not, he had an obligation to be aware of the cyst and to inform the patient of its existence. He also had an obligation to inform the patient that the ovarian cyst was a likely source of her left lower quadrant tenderness on 8/26/10. It was a breach in the standard of care and negligence for Defendant Doctor not to have done so.

It should be noted that Defendant Doctor states in his 8/26/10 note that a repeat CT would be considered in 2 weeks "to evaluate the extent of her disease" if the patient continued to have ongoing symptoms. Not only should this have been considered, but it should have been required if Defendant Doctor was considering recommending the removal of all or part of the patient's colon. Based on Defendant Doctor's clinical findings on 8/26/10 as well as the pathologist's post-operative examination of patient's colon, within a reasonable degree of medical certainty, a CT scan on 8/26/10 would not have shown any evidence of diverticulitis. To remove the patient's entire colon without further studies (ie: CT scan, barium study, colonoscopy) was malpractice and a breach in the standard of care.

4. 9/7/10 Surgical Office Visit:

The patient returned to the office of Defendant Doctor on 9/7/10, presumably for a consultation relating to her ongoing LLQ discomfort. Defendant Doctor performed a physical exam which is recorded as follows:

  • P. E.: On examination today vital signs are good, temperature 97.8, pulse 80 and regular, respiratory rate 20 and blood pressure 140/60. There is tenderness but without significant peritoneal signs in the left lower quadrant. No significant mass or organomegaly are appreciated. The remainder of the abdomen is benign to examination.

The note then reflects the following impressions and plan:

  • Impression:
  • 1. Recurrent diverticulitis left lower quadrant as well as right colon.
  • 2. Status post-previous sigmoid resection for complications of diverticular disease. ...
  • P:..... I would propose doing an exploratory laparotomy with anticipated left hemicolectomy and most likely a subtotal colectomy as it is suspected that the patient has widespread diverticular disease and performing any lesser procedure would leave her at high risk for further episodes of complications of diverticular disease should any diverticular bearing colon be left in place.

The above impressions and plan/recommendation reflect a number of breaches in the standard of care that will be discussed in order. First, as discussed above, there was insufficient medical evidence to diagnose "recurrent diverticulitis". The patient had a benign abdominal exam and the patient had no signs of any active infection or active diverticulitis. The only tenderness she had was to deep palpation over her left ovarian cyst, which was likely causing her pain. In addition, the patient had no medical evidence of "recurrent diverticulitis" in her "right colon." There was no medical evidence to support these conclusions and it would have been negligent and a breach in the standard of care to inform the patient of this diagnosis. Second, with tenderness to deep palpation being the only significant finding on 9/7/10, it was medical negligence and a breach in the standard of care for Defendant Doctor not to inform the patient of her left ovarian cyst or to inform her that this was the likely source of her pain. Third, although the patient had some evidence of "mild diverticulitis" by CT scan on 7/24/10 with no localized areas of pain, she never had evidence of "severe", "complicated" or high risk diverticulitis. It was medical malpractice and a breach in the standard of care for Defendant Doctor to recommend a left hemicolectomy or a subtotal colectomy given the paucity of findings in this patient. This was especially true with respect to the subtotal colectomy because the 8/2/10 CT scan revealed that the possible diverticulitis in the ascending colon had resolved and the thickness of the colonic wall in the entire colon was within normal limits. Fourth, in his deposition Defendant Doctor was asked to draw the patient's colon and to draw the areas of inflammation in both the ascending and descending colons. This was done on Exhibit 5 of his deposition. In the ascending colon Defendant Doctor identified 5-6 cm of inflammation or thickening. In the descending colon Defendant Doctor identified 9-10 cm of inflammation or thickening. There was no medical evidence of any other problems in any other areas of the patient's colon. The pathology report revealed that the colonic specimen was 72 cm in length. Thus, according to Defendant Doctor, 56 cm or more of patient's colon revealed absolutely no evidence of diverticulitis. It is unconscionable for Defendant Doctor to recommend the removal of 56 cm or more of healthy colon, knowing that the only sign of ongoing problems with the patient was tenderness in the area of her ovarian cyst. Fifth, as mentioned above, Defendant Doctor stated in his 8/26/10 note that a repeat CT would be considered in 2 weeks "to evaluate the extent of her disease" if the patient continued to have ongoing symptoms. When the patient represented on 9/7/10 and Defendant Doctor continued to suspect diverticulitis, a CT scan should have been ordered if Defendant Doctor was considering recommending the removal of all or part of the patient's colon. Based on Defendant Doctor's clinical findings on 9/7/10 as well as the pathologist's post-operative examination of patient's colon, within a reasonable degree of medical certainty, a CT scan on 9/7/10 would not have shown any evidence of diverticulitis. To recommended the removal of the patient's entire colon without further studies (ie: CT scan, barium study, colonoscopy) was negligence and a breach in the standard of care / medical malpractice.

5. 9/10/10 Colon Surgery:

On 9/10/10, Defendant Doctor performed the recommended surgery on the patient. As indicated in the surgical note of 9/7/10, this surgery was supposed to be an "exploratory laparotomy." Exploratory laparotomies are often performed when a definitive diagnosis cannot be made based on the medical evidence available prior to the procedure. The purpose of the exploration in a situation like patient's is to go in and make a visual inspection to see what could be the cause of the patient's ongoing tenderness in her left lower quadrant. Often times a surgeon will find something that was not anticipated that will require the surgeon to change the planned procedure or to change the scope of the procedure.

When Defendant Doctor entered the abdomen he encountered a significant amount of adhesions in the patient's lower abdominal quadrants. Given the number of her prior surgeries, this was not an unusual finding. In Exhibit 5 Defendant Doctor identified these adhesions as being predominantly in the right lower quadrant and partially in the left lower quadrant. In his operative report Defendant Doctor indicated that the "lysis of adhesions" "took well over an hour" before the exploration could proceed. What the operative report does not discuss is the fact that these extensive adhesions could have been causing the patient's lower quadrant pain. In his deposition, Defendant Doctor testified:

  • Q. Now, these adhesions that you encountered, were they more than you initially anticipated before you did the surgery?
  • A. Definitely.
  • ***
  • Q. The extensive adhesions that you reflect in your postoperative diagnosis and that you've drawn on Exhibit 5, you indicated that they were extensive; correct?
  • A. Uh-huh.
  • ***
  • Q. And is that something that can cause pain? Adhesions in their abdomen, can they cause pain to a patient?
  • A. Yes, yes.
  • Q. Can they cause significant pain?
  • A. Yes.

During the surgery on 9/10/10, Defendant Doctor should have considered the fact that the patient's significant adhesions could have been causing her the pain that she had experienced over the preceding months. There is no indication in the operative report that this was taken into account before removing the patient's colon.

More importantly, after the adhesions were taken down and Defendant Doctor's exploration into the pelvis continued, Defendant Doctor made the following finding:

With exposure down to the pelvis, it was apparent there was a small left ovarian cyst present, which was adherent to the distal descending colon.

With respect to this finding and the operation itself, Defendant Doctor testified:

  • Q. Okay. Now, I didn't see anything in your clinical summary on the first page about the left ovarian cyst or you talking with patient about that. Is there a reason why?
  • A. I didn't appreciate it beforehand. I can't remember if it was indicated on the CT scan, but it was a finding at the time that had to be dealt with because of the fact that it lay over this -- right in this area where everything else was being done, and we just -- we couldn't complete the rest of the operation without taking that out. So it was one of those things that's always indicated as something necessary to the completion of the operation.
  • Q. Okay. And I understand from your operative report that the ovarian cyst was actually adherent to the colon; correct?
  • A. The colon, yes.
  • Q. So when you say adherent, I take that as attached. Would I be correct?
  • A. That is true.
  • Q. So this cyst on the left ovary was not only attached to the left ovary, but it also attached itself to the wall of the descending colon; correct?
  • A. Correct.
  • Q. And that attachment occurred in the area that you also have identified as inflammation; correct?
  • A. Correct.
  • Q. And is this also the area that patient was complaining of left lower quadrant pain?
  • A. Yes, yes.
  • Q. And I think you indicated that you hadn't talked to patient about this ovarian cyst because you hadn't appreciated it before this procedure; correct?
  • A. Correct.

He also testified accordingly:

  • Q. But you would agree with me that as of your surgery on 9-10 of 2010, you didn't know how big that ovarian cyst was?
  • A. Correct."
  • ***
  • Q. In fact, as you sit here today, you don't have a recollection of being aware of or appreciating the presence of a cyst --
  • A. Going in --
  • Q. Is that accurate?
  • A. Yes.
  • Q. And that's -- Would you agree with me that would be the only reason why you wouldn't alert patient of the presence of an ovarian cyst and discuss that with her?
  • A. Correct.

It is unclear what Defendant Doctor knew or did not know about the existence of the left ovarian cyst since his testimony appears to be inconsistent throughout his deposition. However, if Defendant Doctor's testimony is believed, then he did not know that the left ovarian cyst had attached to the colon in the exact area of the patient's complaint of tenderness. Defendant Doctor should have known that the cyst and its attachment to the colon were likely the cause of the patient's ongoing tenderness in her LLQ. At this point in the surgery, by Defendant Doctor's testimony, he had identified two unexpected pathologies (extensive adhesions and ovarian cyst adherent to colon) that were likely sources of pain or discomfort for the patient. Having already removed the adhesions, Defendant Doctor should have removed the ovarian cyst, detached it from the bowel wall and concluded the procedure. Given the substantial risk to the patient of performing a total colectomy as well as the substantial morbidity caused by such removal, there was no medical justification for the removal of the colon. It was medical malpractice and a breach in the standard of care for Defendant Doctor to continue on with the procedure and to remove the patient's entire colon.

E. DEFENDANT DOCTOR'S JUSTIFICATIONS FOR HIS BREACHES IN THE STANDARD OF CARE HAVE NO MEDICAL BASIS.

In reading Defendant Doctor's deposition it becomes clear that he attempts to justify or excuse his unwarranted removal of patient's colon. His attempted excuses have no medical basis.

1. Patient Did NOT Have "Significant Pain" justifying the removal of her colon.

At a number of places in his deposition Defendant Doctor attempts to justify his unwarranted removal of the patient's entire colon based on his assertion that she was having "significant pain." When initially discussing his 9/10/10 operative report and his discussions with the patient regarding therapeutic options, Defendant Doctor testified:

  • A. That she had basically had six weeks of continuous and what would be considered adequate treatment normally for acute diverticulitis and that she was still continuing to have significant pain. She still was having difficulty carrying out her normal daily activities. She was still having problems going to work, and her and her husband both saying that she can't go on like this. She can't work. She can't live. She needed to have something done.
  • Q. So based on your recollection as of 9-10 of 2010, are you saying that she was still having significant pain at that time?
  • A. Yes.
  • Q. And where was the pain?
  • A. Left-sided. Left lower quadrant.
  • Q. And is it your testimony, based on your recollection, that this left lower quadrant pain at this time was interfering with her activities of daily living?
  • A. Yes.

He also testified as follows:

  • Q. So when you're thinking, in your mind, that she may have or you may encounter some active process, are you relying on your exam that you did on 9-7 or are you relying on Doctor Latella's pre-op or both?
  • A. Well, to some extent both, but also relying on the fact, pure and simple fact, that the patient is continuing to have significant pain, you know. And as a rule, once you're treating diverticulitis, if it's going to get better, they quit having pain. So the fact that she's having on-going pain makes you concerned that she has some on-going active inflammation.
  • ***
  • Q. Now, since you indicated that she was having significant pain in her left lower quadrant, did you explore that area first?
  • A. Once we got the adhesions divided you mean?
  • Q. Yes.
  • A. Yes.
  • Q. And would that have been because, once again, that's where she was complaining most recently of significant pain?
  • A. Seemed to be where the money was, yes.

However, directly contrary to this testimony, the patient did not have "significant" pain prior to the surgery of 9/10/10. In fact, as Defendant Doctor documented in his notes of 8/26/10 and 9/7/10, the only complaint the patient had was of "tenderness" to deep palpation in the LLQ. Later in his deposition when the questioning was more specific on this very issue, Defendant Doctor testified:

  • Q. So as of that time on 9-7 of 2010, she had no fever reflecting infectious process; correct?
  • A. Correct.
  • Q. There's tenderness, I assume, in the left -- well, it says tenderness left lower quadrant; correct?
  • A. Correct.
  • Q. But no significant peritoneal signs, meaning she has no rigidity, no rebound tenderness; right?
  • A. Correct.
  • Q. And you couldn't palpate any mass at all; is that right?
  • A. Correct.
  • ***
  • Q. Okay. Then you say the remainder of the abdomen is benign to examination. What do you mean by that?
  • A. Meaning that there were no localized areas of significant tenderness, irregularity, abnormality, mass effect or anything else.
  • Q. Okay. So other than the tenderness, which I assume was the same tenderness she was having on 8-26 of '10; correct?
  • A. Correct.
  • Q. So other than that tenderness, you didn't find any other significant pain or problems in her abdomen?
  • A. Correct.
  • Q. And I assume this is tenderness to deep palpation that we had discussed in the previous exam?
  • A. I would assume.
  • ***
  • Q. Okay. Now, from a medical standpoint, based on your medical examination of her this day, she wasn't having significant medical pain on this day; correct?
  • A. I think she was having some pain. But I mean, was she laid up with the pain, no.
  • Q. Okay. And there's no indication in your medical record on this date, on 9-7 of '10, that she was having significant pain on this date that interfered with her activities of daily living. She was just concerned about the future and the unpredictability.
  • Is that fair?
  • THE WITNESS: Well, up above in that paragraph -- longer paragraph, under indications, I mean, she now has continued discomfort in the left lower quadrant area. I mean, it doesn't quantify it or anything else, but she does make that comment. I mean, she is still having the pain.
  • BY MR. HIXSON:
  • Q. Right. Which you took to mean the mild tenderness to deep palpation that you had detected previously; correct?
  • A. Right, correct.
  • Q. So back to my question, other than this mild tenderness to deep palpation, what -- did you find, from a medical standpoint, as her physician, any significant pain on 9-7 of 2010?
  • A. No.
  • Q. And other than her complaint of mild tenderness to deep palpation, did you find any other clinical evidence of an active diverticulitis?
  • A. At the time on 9-7 you mean?
  • Q. Yes.
  • A. No.

Contrary to Defendant Doctor's original statement that the patient was have "significant" pain that warranted his recommendation for removal of the patient's colon, the medical records shows the patient was only having "mild tenderness" in the area of her left ovarian cyst. As can be seen above, Defendant Doctor subsequently admitted that prior to the surgery of 9/10/10, the patient did not have complaints of "significant" pain and did not have pain that interfered with her activities of daily living. It was a breach in the standard of care and medical malpractice to recommend removal of the patient's entire colon due to ongoing "significant" pain when the patient only had "mild tenderness" to deep palpation over the area of her ovarian cyst.

2. Patient's Colon Did NOT Reveal Signs of Inflammation and Thickening Justifying the Removal of Her Entire Colon?

Due to the paucity of clinical, laboratory and radiographic evidence of diverticulitis prior to the 9/10/10 surgery, Defendant Doctor testified that he ultimately based his decision on the removal of the patient's entire colon on his assertion that the ascending and descending colon showed signs of inflammation and thickening during the 9/10/10 surgical procedure. He testified:

  • Q. Do you agree that gross examinations of diverticular colons reflect thickening of the muscle wall and shortening of the -- I'm going to pronounce it taeniea,
  • T A E N I E A?
  • A. Yes.
  • Q. And with a resulting accordion-like bunching of the folds?
  • A. Yes. .
  • ***.
  • Q. And regardless of what the CTs showed, based on your recollection when you went in for the exploratory laparotomy, do these areas on Exhibit 5 accurately reflect the areas that you believe reflected inflammation or thickening of the colon?
  • A. I believe so.
  • ***.
  • Q. And that's what I want to know, is what part of the surgery did you use in reaching your postoperative diagnosis of diverticulitis?
  • A. The -- the fact that she had inflammation and thickening in both of these areas.
  • Q. Anything else?
  • A. Not really.
  • Q. And when you say these areas, it's the areas in red that you identified on Exhibit 5 for me; correct?
  • A. Correct.
  • ***.
  • Q. So when you explored that area, the -- we'll call the bottom area below the umbilicus down by the descending colon. You explored that first. Tell me what you found as you explored.
  • A. Well, just evidence of, as we had indicated on here previously, inflammation, thickening in this lower segment, which we felt was consistent with her seeming history of recurrent diverticulitis in that area.
  • However, we know that the 8/2/10 CT scan did not show any thickening in any parts of the colonic wall. More importantly, I did read the testimony of the examining pathologist. He testified as follows:
  • Q. So when you did your gross examination and you looked at the bowel as a whole, you said there's no area suggestive of exudate.
  • What does that mean?
  • A. That means that there is no area suggestive of inflammation or infection on the exterior surface.
  • Q. Okay. So when you did your gross examination and you looked at the outside of the colon, you didn't see any evidence that would show you that you had inflammation or infection on the outside; correct?
  • A. Correct.
  • Q. And did you find any areas that you considered the colon was thickened or that the lumen was decreased?
  • A. I don't describe that.
  • Q. Okay. And that would be a significant finding as a pathologist that if you had found that, you would document that.
  • Would that be fair?
  • A. That would be correct.
  • ***.
  • Q. So when you go through and you're looking through the entire length of this 72 centimeters, and you're looking through the adipose, did you find any gross examination that would indicate some abscess or sign of infection?
  • A. I don't describe that.
  • Q. And if you had found something like that, your standard practice would have been to document that as an abnormal finding.
  • Would that be fair?
  • A. That is correct.

Based on the pathologist's testimony, the 8/2/10 CT scan, the clinical findings and the laboratory findings, within a reasonable degree of medical certainty there were no abnormalities in the colon that justified its removal by Defendant Doctor on 9/10/10.

3. A Colonoscopy, barium enema, or Repeat CT Scan Should Have Been Performed Before Removing Patient's Entire Colon.

Throughout the preoperative period, there is discussion regarding a colonoscopy to "evaluate extent of the [diverticular] disease." Defendant Doctor testified that he did not do the colonoscopy because the patient had signs of an active infection. However, the patient did not have signs of an active infection at the time of her surgery on 9/10/10. Defendant Doctor testified:

  • Q. So all of the clinical signs that you and I previously talked about, if most of those are basically back to normal, it tells you, okay, our active process is probably taken care of, it's okay to do a colonoscopy?
  • A. Subsided, yes.

By the time the patient visited Defendant Doctor's office on 9/7/10, the patient had basically no clinical signs of an active infectious process. Defendant Doctor could have safely performed a colonoscopy or a sigmoidoscopy prior to removing patient's colon. In the alternative, Defendant Doctor could have order a CT scan which would have revealed that the patient did not have any signs of thickening in her colon and, more likely than not, did not have any signs of inflammation. It would have also reconfirmed that the left ovarian cyst remained the only reasonable source of the patient's ongoing "tenderness" in her LLQ. It was negligence and a breach in the standard of care for Defendant Doctor not to order another CT scan or not to have performed either a barium enema or colonoscopy before removing the patient's entire colon.

4. Defendant Doctor's Explanation of the Removal of Patient's Left Ovary and Left Ovarian Cyst Is Suspect and Raises Additional Issues Regarding the Standard of Care / Medical Malpractice.

As discussed above, from a medical standpoint, it is clear that patient's left ovarian cyst was the likely cause of her LLQ tenderness. Defendant Doctor, by his own testimony, did not "appreciate" the ovarian cyst and did not discuss the existence of the ovarian cyst with the patient prior to the surgery of 9/10/10. However, once he did appreciate the cyst during the surgery, he removed it. I have several concerns and opinions regarding Defendant Doctor's explanation as to why he removed the ovary and the ovarian cyst.

Defendant Doctor testified that he removed the left ovary and cyst because it was adherent to the colon. In other words, Defendant Doctor said he dissected the ovarian cyst from the wall of the colon and removed it. I find no medical evidence to support this claim for the following reasons.

First and foremost, there is no pathological evidence to support Defendant Doctor's testimony. Defendant Doctor testified that the ovarian cyst was adherent (attached) to the colon in an area measuring approximately 2 cm. Thus, if the ovarian cyst was attached to the colon, it would have required surgical removal as Defendant Doctor testified. However, the pathologist, who did a detailed examination of the exterior of the colon testified as follows:

  • Q. Now, Doctor, when you looked at the outside of the colon, I think you indicated that you didn't see any areas that you would consider abnormal.
  • Is that -- Is that correct?
  • A. I don't describe anything.
  • Q. So -- And this is what I'm looking for, Defendant Doctor testified that there was a cyst that had -- was attached for an area of approximately 2 centimeters to the outside of the colon and needed to be cut away.
  • And I didn't see anything in your report mentioning that. And that's -- So that's why I want to ask you about it. I'm putting it into reference for you. Okay.
  • Do you understand what I'm saying?
  • A. I don't describe that in my report.
  • Q. Would that have been something, as a pathologist, you, looking at the colon, if there had been a cyst that had been attached that had been cut away or surgically removed, would that be visible?
  • A. Yes.
  • Q. Okay. Did you see anything like that?
  • A. I don't describe it, so I didn't see it.
  • Q. If you had seen anything like that, would you have described it and put it in your report?
  • A. Yes.
  • Q. Do you consider that your examination of the colon was thorough enough that if it was there, you would have seen it?
  • A. Yes.

If the ovarian cyst was adherent to the colon and required surgical removal, there may have been visual evidence of this removal. This evidence would have been apparent on both the colon and on the ovarian cyst.

Second, the ovarian cyst and the ovary, under the hospital's Rules and Regulations were required to be sent for pathological examination. This is a standard requirement in operating rooms across the United States. It would be unheard of for a surgeon to remove an ovary and an ovarian cyst and not send it for pathological examination. This is because the cyst can contain some unknown pathology (i.e., cancerous cells) that needs to be identified, communicated to the patient and potentially treated. Defendant Doctor admitted that he was aware of this requirement and was aware that the ovarian cyst was required to be sent for microscopic and macroscopic examination by a pathologist. However, from the deposition of the treating pathologist and the lab form (Exhibit 15) it appears that the ovary and ovarian cyst were not sent to the pathologist.

  • When asked about this, Defendant Doctor testified as follows:

  • Q. So when you received this report, did you recall thinking, hey, wait a minute, what about the ovary and the cyst specimen that were sent separately?
  • A. Yes.
  • Q. Did you call [treating pathologist] and talk to him about that?
  • A. No. I believe I talked to the lab about it.
  • Q. Okay. Tell me what the discussion was and who you talked with.
  • A. I don't really recall who I talked with. I mean, it was just raising a question about the specimen.
  • Q. Okay. Tell me what you said.
  • A. That the -- what happened to the ovary?
  • Q. And what were you told?
  • A. That they would check into it.
  • Q. Would it have been the same day that you received back the pathology report from Doctor Cook?
  • A. Probably.
  • Q. So give me an approximate date that you think this discussion with this lab technician would have taken place.
  • A. September -- possibly the 14th. More likely the 15th or the 16th.
  • Q. Was your discussion with this -- I'm calling them a lab tech, is that correct, or is it somebody else?
  • A. Don't recall.
  • Q. Is it something where you would have went down in person to the lab or is it here at the hospital?
  • A. Yes, in the hospital.
  • Q. Is it something you would have went down in person or you would have called and talked to somebody on the phone?
  • A. Probably in person since they're almost across the hall from me, from my office.
  • Q. And when you talked to this person, am I correct that basically it was just, hey, what happened to the ovary?
  • A. Correct.
  • Q. And this person said, we'll look into it?
  • A. Right.
  • Q. And was that it?
  • A. That was it.
  • Q. What follow-up did you do?
  • A. I don't recall any follow-up.
  • Q. So you didn't follow up.
  • Do you recall anybody contacting you from the lab in follow-up?
  • A. No.
  • Q. Now, can you -- At the time this happened, you would have known that the failure to obtain a gross examination and microscopic examination would be a violation of hospital policy and procedure; correct?
  • A. Yes.
  • Q. And as a surgeon, you know it, I mean that's standard practice to get a pathological examination on an ovary and a cyst that you removed; correct?
  • A. Sure.

From a medical standpoint, this would have been a serious matter. In the normal practice of a hospital, pathological specimens don't just get lost and swept under the rug. If a pathological specimen is misplaced or lost, there should be substantial documentation on the incident as well as a determination of where in the chain of custody the hospital's protocol on pathological specimens broke down. Instead, from Defendant Doctor's testimony it appears like this was no big deal. If indeed Defendant Doctor directed that the ovarian cyst be sent for pathological examination, there was no substantial follow-up at all regarding the missing specimen. This would have been a substantial breach in the standard of care and the surgeon's obligation to the patient.

Third, based on the information I have been provided, it does not appear that Defendant Doctor informed the patient that he removed an ovary and an ovarian cyst. It would be unconscionable for a surgeon to remove a woman's last remaining ovary and not tell her. In addition, if the specimen were lost, no one would have any way of knowing whether or not the cyst was cancerous or not or whether there were any other abnormalities. Even so, there was no communication to the patient that the specimen was supposedly lost. The standard of care required Defendant Doctor to inform the patient that he removed her remaining ovary and there was an ovarian cyst. He failed to do so. In addition, if in fact the specimen had been sent to pathology for examination and had been lost, the standard of care required Defendant Doctor to inform the patient of this fact. He did not. The above were breaches in the standard of care.

Fourth, Defendant Doctor testified that when a specimen is removed from a patient, there is a discussion with the operating room personnel as to what is being sent for pathological examination. Based on this discussion, the operating room personnel would complete a lab form that is to be sent to pathology along with the specimen. In this case, the lab form ("Pathology Consultation Request") dated 9/10/10 stated: "Specimen Submitted: large bowel." There was no indication anywhere that the ovary or ovarian cyst were requested to be sent for pathological examination. If Defendant Doctor did in fact direct the operating room personnel to send the ovarian cyst to pathology, then one must conclude that there was a breach in the standard of care by the operating room personnel. First, operating room personnel would have failed to document on the lab form Defendant Doctor's direction that the ovarian cyst be sent to pathology. Second, the operating room personnel would have failed to notice the ovary or ovarian cyst on the "table" and would have failed to properly package it as a separate specimen. Third, after the surgery was completed, the operating room personnel would have simply thrown away or discarded the ovary and ovarian cyst without further inquiry of the physician. All of these would have been breaches in the standard of care.

Fifth, if Defendant Doctor had called and talked to the lab about the missing specimen, standard practice would have required that some kind of incident form or report be completed to document the problem. The treating pathologist testified:

  • Q. Do you know if there's anything done here at the . . . Hospital if there's been an inquiry to the lab about a specimen that was supposedly sent to the lab but now cannot be found?
  • A. The -- Yes. The attendant would take care of that.
  • Q. Would there be some type of incident sheet or something filled out to document the fact that a specimen has been lost?
  • A. The attendant would take care of that, yes.
  • Q. Now, I know you say the attendant would take care of that. And I understand. But to your knowledge, would there be some written documentation --
  • A. Yes.
  • Q. -- about that?
  • A. Yes, there would.

Even so, to my knowledge there is no documentation reflecting that Defendant Doctor inquired of the lab about the missing specimen and no documentation from the lab indicating that a specimen was missing. I have been provided with Defendant Hospital's Response to Plaintiff's Request For Admissions. In relevant part, the Response provides:

REQUEST NO. 1: Defendant Doctor testified that he talked with someone in the lab at the Hospital about patient's ovary specimen that was missing and had not been sent to . . . Pathology.

Please Admit or Deny the following: Defendant Hospital is not aware of any individual who was working in the lab at the Hospital in September 2009 who remembers talking with Defendant Doctor about patient's missing ovary.

RESPONSE: Admit

REQUEST NO. 2: Defendant Doctor testified that he talked with someone in the lab at the Hospital about patient's ovary that was missing and had not been sent to Pathology.

Please Admit or Deny the following: Defendant . . . Hospital is not aware of any written documentation at the Hospital that would evidence any inquiry by Defendant Doctor about patient's missing ovary.

RESPONSE: Admit

It would have been medical negligence and a breach in the standard of care for lab personnel not to have generated some written documentation regarding the problem, the inquiry by Defendant Doctor or the missing specimen.

E. DEFENDANT DOCTOR FAILED TO OBTAIN INFORMED CONSENT FROM THE PATIENT.

Based on the testimony, it is clear that Defendant Doctor recommended patient undergo a possible subtotal removal of her colon because of what Defendant Doctor characterized as "recurrent diverticulitis" in her right and left colon. This recommendation was given without thoroughly evaluating the presence or absence of diverticulitis throughout her colon and without informing the patient of her left ovarian cyst and without informing the patient that the left ovarian cyst could be causing her LLQ tenderness. This information was vital if the patient was going to make an informed decision as to whether or not to consent to the removal of her entire colon. Defendant Doctor committed medical malpractice and breached the standard of care by failing to provide this information to the patient before obtaining her consent for the colectomy procedure.

II. DEFENDANT DOCTOR FAILED TO APPROPRIATELY AND TIMELY RESUSCITATE PATIENT AFTER SHE EXHIBITED SIGNS AND SYMPTOMS OF POST-HEMORRHAGIC OR HYPOVOLEMIC SHOCK.

Prior to the 9/10/10 colon surgery the patient's labs revealed: Hgb: 14.0; Hct: 44.5 and Platelets of 241. Surgery on 9/10/10 started at 0749 hrs and ended at 1255 hrs. EBL from the procedure was estimated at 300 cc. At 1302 the patient's vitals were recorded as follows: B/P: 100/44; P: 124. The patient was tachycardic and slightly hypotensive in her resting pressure. At 1315, the patient's vitals were recorded as follows: B/P: 81/52; P: 111. The patient remained tachycardic and was now hypotensive. At 1325 hours, the patient's vitals were recorded as: B/P: 79/45; P: 103. At 1439 hours, the patient's B/P was 88/56 and her pulse was 106. She remained hypotensive and tachycardic.

At 1530 hrs on 9/10/10, Defendant Doctor ordered that the IV hourly rate be increased to 250 cc/hr x 4 hrs, then decreased to 150 cc/hr. At 1608 hours the patient's B/P was 83/53 and her pulse was 112. At 1734 hrs Defendant Doctor was notified that the patient's urine output was 20 cc. At 1815 hrs the patient's B/P was 77/30. Defendant Doctor was aware of this and had "a concern about perfusion of [the patient's] organs and her anastomosis." An hemoglobin and hematocrit was ordered by Defendant Doctor and at 1820 hrs revealed: Hgb: 7.4 and Hct: 22.0. Regarding the labs, Defendant Doctor testified:

  • Q. And in fact, at 1820 hours on 9-10 of '10 showed her hemoglobin was 7.4 and her hematocrit was 22; correct?
  • A. Correct.
  • Q. And that's low; right?
  • A. That is low.
  • Q. What was your concern at that point?
  • A. That she had lost blood. Certainly a lot more blood, out of proportion to what we had lost intraoperatively and that she had some ongoing blood loss at that point.
  • Q. And I think you had told me that your expected blood loss during the procedure was about 300?
  • A. Correct.
  • Q. And we had talked about in your first deposition your knowledge about a certain decrease in hemoglobin or hematocrit usually equates to X amount of blood loss.
  • Do you recall that?
  • A. Correct.
  • Q. And I think we had discussed a one point drop in her hemoglobin would equate to about 500 cc loss of blood or a 3 percent loss in hematocrit would equate to about a 500 cc loss in blood; correct?
  • A. Correct.
  • Q. So at this time when you saw the significant drop in her hemoglobin and hematocrit, did you attempt to determine, look, how far have we dropped here?
  • A. Well, you eyeball, think about that, that she started up in the 13, 14 range and now she's down that low. With some lost in surgery, like you said, the 300 cc's. Some -- what we would call vasodilation -- or no.
  • She got a lot of IV fluid during the operative case. She got 4,900 cc's plus 500 of Hespan. She's now gotten several additional liters of IV fluids. So certainly there's a dilutional effect on her blood count to a bit of a degree.
  • So all of that loss is expected loss and expected decrease. How much is actually lost, three to four units of blood probably at that point.
  • Q. Okay. And so when you saw this, what went through your mind as, look, we have about three or four units of blood loss here, so what do you do?
  • A. Well, you transfuse blood. You know there's always the potential for blood loss following surgery. We know that again this was -- this was a surprise because you know that closing up, looking in the abdomen several times, irrigating, looking for possible continued bleeding before you close the patient up, you know that hemostasis is good.
  • So, you know, did something start, all of a sudden pop and start bleeding right after surgery? Don't know. But certainly it kind of gives that impression that now she's oozed down three or four units of blood by 500 after we were done with surgery.
  • ***.
  • Q. I just want to try to compare apples to apples. So when you say she has potentially lost three to four units, how does units compare to liters?
  • A. Basically two units to a liter.
  • Q. Okay. So when you see this, you're thinking as a surgeon, okay, she -- I have a patient here that could have lost approximately a liter or more of blood; correct?
  • A. Correct.

I would agree with Defendant Doctor that at this point in time a reasonable estimate of blood loss in the patient, taking into account any dilutional effect, would be approximately 3-4 units of blood.

At 1820 hrs on 9/10/10, Defendant Doctor ordered a bolus of 500 cc. and ordered that the patient be transfused with 2 units of LRPRBC. Although the 2 units of PRBC were appropriate, the 500 cc was inadequate to immediately restore perfusion to the patient's organs including her bowel and anastomosis site. Her Hgb had dropped from a preop value of 14 to a postop value of 7.4. This was a large drop and revealed that the patient had lost a significant amount of blood either during the surgery or in the immediate post operative time period. She needed adequate resuscitation. This was not done and was a breach in the standard of care.

The 1st unit of PRBCs was started at 1835 hrs followed by the 2nd unit at 1855 hrs. At 1905 hrs Defendant Doctor was informed by nursing staff that the patient's urine output since 1730 hrs was 10 cc, the B/P was 78/45 and the pulse was 119. At this time the patient was hypotension and tachycardic with evidence of kidney dysfunction due to lack of adequate blood perfusion. She was in shock. Regarding this call, Defendant Doctor testified:

  • Q. And this reflects a call from the nurse to you regarding urine output; correct?
  • A. Correct.
  • Q. And she told you that since 1730 hours urine output had been 10 cc's; correct?
  • A. Correct.
  • Q. So that was worse than the 20 cc's that you had been told before; correct?
  • A. Correct.
  • Q. So this would have given you more concern about problems with the kidney and lack of perfusion to the kidney from hypovolemic shock; correct?
  • A. Correct.
  • Q. And at that time did she tell you that the patient's blood pressure was 78 over 45?
  • A. Correct.

At this point any reasonable surgeon would have been concerned that the shock and inadequate perfusion and possible ongoing bleeding could cause ischemic injury to the anastomosis site as well as the bowel and other organs.

At 1925 hrs the patient's post transfusion B/P was 87/45 and her pulse was 118. Thus, after receiving her PRBC transfusions and her 500 cc bolus, the patient remained hypotensive. Defendant Doctor agreed in his deposition. At 2000 hrs the patient's B/P was 80/43 and her pulse was 100. At 2015 hrs Defendant Doctor was updated on the patient's urine output and her B/P of 71/53; P: 110-120. Regarding this update, Defendant Doctor testified:

  • Q. And so when you were informed at 2015 hours on 9-10 of '10 that her BP was 71 over 53 and her heart rate was -- it looks like 110 to 120; is that right?
  • A. Correct.
  • Q. So she was hypotensive. She had a lack -- a decrease in pulse pressure and she was tachycardic?
  • A. Correct.
  • Q. So at this time were you concerned that she was still in hypovolemic shock?
  • A. Yes.

In response, Defendant Doctor ordered that LR be increased to "500 cc x 1 hr, then 250 cc/hr continuous." This was inadequate and a breach in the standard of care / medical negligence. The patient required substantial resuscitation in order to immediately restore perfusion to her organs and her anastamosis.

At 2040 hrs on 9/10/10, labs revealed a Hgb: 11.5 and Hct: 34.6. At 2100 hrs the patient's B/P was 74/50 and her pulse was 122. At 2130 hrs B/P was 78/53 and pulse was 125. The patient continued to be in shock.

At 2300 hrs on 9/10/10, Defendant Doctor was notified that the patient had 49 cc of amber urine and complained of dizziness with a B/P of 80/51. At 2015 hrs when Defendant Doctor ordered the 500 cc for 1 hour, the patient's B/P was 71/53. Now, almost three hours later, the patient was still exhibiting signs of shock. Regarding this notification by nursing staff, Defendant Doctor testified:

  • Q. So about two hours and 45 minutes after you ordered the one-hour bolus of 500 cc's, you're concerned with hypovolemia, that's the next time that you were contacted and made aware of the patient's blood pressure; correct?
  • A. Correct.
  • Q. And at that time would you agree with me that her blood pressure was still not acceptable to you?
  • A. Still not ideal, that's for sure.
  • Q. She was still hypotensive; correct?
  • A. Correct.
  • Q. Still at risk for inadequate perfusion of her organs, including her kidneys, her liver and her bowel; correct?
  • A. Correct.

Despite knowing that the increased IV fluids (500 cc x 1 hr) had not had any appreciable effect on the patient's hypotensive state and that the patient was still at risk for lack of perfusion to her organs and her bowels, Defendant Doctor gave no further orders. This was a breach in the standard of care.

At 0130 hrs on 9/11/10, the patient's B/P was 83/53 and at 0205 hrs Defendant Doctor ordered Dopamine 400 mg. At 0230 hrs Defendant Doctor was notified that the patient's B/P was 75/57. Based on this notification, Defendant Doctor testified:

  • Q. And at, if you look at page 439 again, at 2:30 in the morning, you were notified by the nurse that patient's blood pressure at this time was 75 over 57; correct?
  • A. Correct.
  • Q. So at that time that would have indicated to you that she was still in hypovolemic shock; correct?
  • A. Correct.

Although Defendant Doctor knew the patient was in shock, no additional orders were given. This was medical malpractice and a breach in the standard of care.

At 0300 hrs on 9/11/10, B/P was 85/46 and at 0415 B/P was 95/75 with a pulse of 122. The patient remained in shock with tachycardia and a pulse pressure of 20. At 0540 hrs on 9/11/10, labs reflected a Hgb: 9.8 and Hct: 28.9. Recall, at 2040 hrs on 9/10/10, labs revealed a Hgb: 11.5 and Hct: 34.6. Thus, in 9 hours the patient experienced a decrease of 1.7 in her Hgb and a decrease of 5.7 in her Hct. This was clear evidence that the patient was continuing to bleed. Using the formula acknowledged by Defendant Doctor that a 1 point drop in the Hgb = 500 cc loss of blood, the above drop reflected a blood loss of approximately 850 cc. (1.7 x 500 cc = 850 cc).

At 0545 hrs on 9/11/10, B/P is 95/57 and Pulse is 120. At 0700 hrs B/P was 97/58 and Pulse was 122. At this time Defendant Doctor ordered a bolus of 500 cc LR over 1 hr. At 0750 hrs B/P is 83/56 and Pulse is 125. The patient was hypotensive and tachycardic with ongoing bleeding as the most likely cause. The patient's ongoing blood loss and resulting shock were confirmed at 1000 hrs when labs revealed:

  • WBC: 15.3 H
  • Hgb: 8.9 L
  • Hct: 26.3 L
  • RBC: 2.81 L
  • Plts: 157
  • BUN: 26 H
  • Calcium: 6.3 L
  • Creat: 2.9 H
  • GFR: 18 L [60-159]
  • ALK Phos: 46 L
  • Glucose: 144 H
  • Sodium: 133 L
  • Potassium: 6.0 H
  • CO2: 20 L
  • AST: 1415 H
  • ALT: 625 H

These lab results revealed kidney and liver dysfunction caused by the hypovolemic shock the patient had experienced postop and as described above.

At 1100 hrs on 9/11/10, the treating physician ordered that the patient be transfused with 2 units of PRBCs and that an abdominal ultrasound be performed. Although there is no indication in the record of an US being performed, a CT scan of the abdomen and pelvis was performed at approximately 1412 hrs and revealed:

  • FINDINGS:

  • ... No dilated loops of bowel or free fluid in the abdomen. ... Increased attenuation along the left paracolic gutter extending into the pelvis with a density of about 50 Hounsfield units concerning for hemorrhage. ....

  • PELVIS: .... Increased attenuation outside of the anterior abdominal wall to the right of midline just above the inguinal region likely due to hemorrhage. Increased attenuation in the presacral region and in the pelvis likely in the retro-peritoneum also likely hemorrhage. ...

  • IMPRESSIONS: .... Increased attenuation along the left paracolic gutter extending into the presacral region, pelvis and outside the anterior pelvic wall on the right side cranial to the right inguinal region due to hemorrhage. Clinical correlation and follow-up suggested.

Defendant Doctor was informed of the CT scan and testified as follows:

  • Q. So according to the CT, once you received the information on the results of the CT, there were possibly two areas of bleeding that were identified; correct?
  • A. Two areas of blood accumulation, correct, where there had been bleeding, correct.
  • Q. So there had -- either there had been or there was two separate areas of bleeding?
  • A. You're right. Correct. Correct.

The PRBC transfusions ordered by [treating physician] were completed between 1215 hrs and 1630 hrs on 9/11/10. Follow-up labs at 1730 hrs revealed:

  • Hgb: 10.2 L
  • Hct: 29.7 L
  • BUN: 28 H
  • Calcium: 6.1 L
  • Creat: 2.2 H
  • GFR: 25 L
  • Glucose PP: 144 H
  • Sodium: 131 L
  • Potassium: 5.0
  • CO2: 23
  • AST: 1446 H
  • ALT: 724 H

Throughout the remainder of the day on the 11th, the patient remained tachycardic, but with pressures not significantly hypotensive. It is presumed that the IV fluids kept the patient's pressures up.

At 0600 hrs on 9/12/10, repeat labs revealed Hgb: 8.6 and Hct: 24.7. Recall, at 1730 hrs on 9/11/10, labs revealed a Hgb: 10.2 and Hct: 29.7. Thus, in 12.5 hours the patient experienced a decrease of 1.6 in her Hgb and a decrease of 5.0 in her Hct. This was clear evidence that the patient was continuing to bleed. Using the formula acknowledged by Defendant Doctor that a 1 point drop in the Hgb = 500 cc loss of blood, the above drop reflected a blood loss of approximately 800 cc. (1.6 x 500 cc = 850 cc). At this point in time, the patient was continuing to experience ongoing bleeding despite being resuscitated with 4 units of PRBC. Defendant Doctor was required to presume that there was an ongoing surgical bleed.

From the above it is clear that during the immediate postoperative period (10th and 11th), the patient suffered shock with multiple organ involvement. This shock was likely a result of a decrease in the patient's intravascular volume caused by post operative hemorrhage. The hemorrhage and decreased volume caused a lack of perfusion to the patient's kidneys, liver and bowel. More likely than not this prolonged decrease in perfusion resulted in an ischemic injury to the patient's anastomosis as well as to the patient's small bowel. This ischemic injury and anastomotic injury caused the small bowel necrosis that was not discovered until 9/23/10 when the patient was taken back to the OR. Regarding the cause of the necrotic small bowel, Defendant Doctor testified:

  • Q. So tell me, what do you think happened?
  • A. Okay. I think it's easy to look back in analysis and try to figure out what happened.
  • I mean, I obviously recall very distinctly what we did at the time of her first surgery. She then, in that initial postoperative period, had hypotension and may well have had critical decreased profusion of tissues.
  • Q. She had evidence of hypovolemic shock?
  • A. Correct.
  • Q. And organ dysfunction because of that shock; correct?
  • A. Well, yes, at the time. I mean, the biggest -- at the time, in her immediate postoperative period, the big indicator that we had of that was, besides her blood pressure, was the fact that her kidneys were working less well, less urine output. We know in our lab tests that she had bumped her creatinine up, she had bumped her BUN up, all indicating decreased kidney function. Well, certainly that's a response of the kidney to hypoperfusion, just probably not getting enough blood, enough oxygen to allow maintenance of normal function of the kidneys.
  • Then that affects other tissues as well. That then she's probably not getting adequate perfusion to her bowel, to her intestine. Because certainly the body's response in any situation when you're dealing with low perfusion and a shocklike state is to preserve critical blood flow. Blood flow goes to your central nervous system. Blood flow goes to your heart, your lungs, kind of stuff. And tissues, I guess, that are considered less important to critical survival get a little bit less blood. And so it's shunted, if you will.
  • Q. So liver, kidney, bowel?
  • A. Get a little bit less flow, because it's redirected to the more critical areas for that period of time.
  • And so I think, looking back, that there was probably critical low perfusion to the bowel, that then over time led that bowel to, in any thinned areas, which are going to be more susceptible to that low perfusion state, probably did not have enough blood flow to survive. And so then eventually gradually, as the bowel heals or responds to that low blood flow state, that probably led to the wall of the bowel breaking down and leaking.
  • ***.
  • Q. Now, with respect to the anastomosis site, would you agree with me that adequate perfusion is critical in those early stages to make sure the anastomosis isn't -
  • A. Absolutely. One of the critical factors always is avoiding ischemia to the anastomotic site. Whether or not that is total body low perfusion or whether or not that's because you maybe have trimmed off too much mesentery and taken away too much tissue supporting that area, so you don't have localized blood flow, but anything that gives you low blood flow to any area of the bowel is likely to lead to bowel breakdown and leak.
  • Q. Did you consider the possibility that that lack of perfusion and the hypovolemic shock in the early stages may have affected the anastomosis site by causing some breakdown?
  • [Defense Attorney]: Are you talking about in retrospect now?
  • MR. HIXSON: Yeah.
  • THE WITNESS: Yeah, in retrospect, certainly. You're always -- Consistent with what can happen with a shocked state, you get low perfusion. And with low perfusion comes relative ischemia to all tissues, like we talked before, about what gets it worst, but certainly bowel does, and especially an area that you're looking for adequate perfusion to help with the healing process?
  • BY MR. HIXSON:
  • Q. That would be an even more critical area?
  • A. Yes.

Any reasonable surgeon would have considered the substantial risk of ischemic injury to the anastomosis and the bowel after a procedure such as a total colectomy. Defendant Doctor appears to have known of and appreciated this risk. In spite of this, Defendant Doctor breached the standard of care by failing to timely and adequately resuscitatde the patient. As a result, the patient suffered a prolonged period of hypovolemic shock and a lack of blood perfusion that likely caused ischemic injury to her anastomosis site as well as her small bowel. Within a reasonable degree of medical certainty, such injuries would not have occurred had Defendant Doctor adequately resuscitated the patient and restored perfusion to her organs, including her bowel.

In addition, the patient clearly suffered a significant amount of blood loss as reflected by the hemoglobin and hematocrit reported at 1820 hrs on 9/10/10. Defendant Doctor recognized this fact. Despite being given PRBC on 9/10/10 and having a transient increase in her hemoglobin and hematocrit, the patient continued to bleed as reflected by the hemoglobin and hematocrit at 0540 hrs on 9/11/10 and her CT scan on this same date. Once the CT scan showed a post surgical hemorrhage and the Lab studies confirmed ongoing bleeding, the patient should have been stabilized and taken back to the operating room. This was not done and was medical malpractice and a breach in the standard of care. In this case, Defendant Doctor chose to given the patient PRBCs on 9/11/10 and wait to see if the bleeding stopped. However, despite being given PRBC on 9/11/10 and having a transient increase in her H & H, the patient continued to bleed as reflected by the H & H at 0600 hrs on 9/12/10. This evidence of continual ongoing bleeding mandated a trip back to the OR to discover the source of the post surgical hemorrhage. Defendant Doctor was negligent and breached the standard of care by not counseling the patient on this option and by not recommending a surgical exploration to discover the source of the bleed.

III. DEFENDANT DOCTOR FAILED TO APPROPRIATELY AND TIMELY RECOGNIZE THAT THE PATIENT HAD A SURGICAL ABDOMEN.

On 9/23/10 when Defendant Doctor took the patient back to the operating room he found "a large amount of foul peritoneal fluid" and numerous areas of small bowel that had become necrotic and perforated. He also found an anastomotic leak. After reading the operative report, it is clear that what Defendant Doctor found did not happen overnight. It had been going on for quite some time. So the question becomes: Why didn't Defendant Doctor notice that patient had signs of an acute abdomen that required an immediate return to the OR?

In a post operative patient who has suffered a significant period of hypovolemic shock like the patient did, the physician is required to have a heightened sense of awareness of those signs and symptoms of an anastomotic leak or ischemic injury to the bowel. Signs such as increasing pain, fever and labs revealing an infectious process would be sentinel signs of an anastomotic leak or other postsurgical problem. In this case, the physicians not only failed to maintain a heightened sense of awareness of possible signs of infection or of an acute abdomen, they prescribed medication that masked the very symptoms that they were required to monitor. As discussed in more detail below, this was medical negligence and a breach in the standard of care.

A. THE PHYSICIANS FAILED TO NOTICE THE PATIENT'S INCREASING PAIN COMPLAINTS AND INAPPROPRIATLEY PRESCRIBED THE PATIENT EVER INCREASING PAIN MEDICATIONS THAT MASKED THE PATIENT'S PAIN.

During the immediate postoperative period, the patient was placed on Dilaudid with dosing through a PCA. Through 9/14/10 the patient received no other pain medications other than the PCA dosed Dilaudid. From 9/11/10 through 9/14/10 the patient's pain levels averaged a 4 on a 1-10 scale. Although a surgeon would expect to see a slow taper in the amount of Dilaudid the patient required during this time frame, the hourly dosing schedule had a slight trend upward.

At 0828 hrs on 9/15/10, [treating physician] gave an order that the patient be given "Vicodin q.i.d. for pain control. Defendant Doctor was aware of this order and testified:

  • Q. Now, you said that he had written an order for switching her over to an oral pain pill. It looks like he did Vicodin QID for pain control.
  • Do you see that?
  • That's on his --
  • A. Yes.
  • Q. -- progress note.
  • A. Yes.
  • Q. Okay. Now, was it your understanding, when you said orders per Doctor Anil, you had seen his order, I assume?
  • A. Yes. Correct.
  • Q. And you had assumed at that point that patient was going to be switched to an oral pain med so you can get her ready to go home; accurate?
  • A. Correct. Although, obviously, in those orders it doesn't indicate a DC of the PCA.
  • Q. Right.
  • A. So the PCA is still available for use as supplement to what she's getting orally.
  • Q. So on the 15th it was still your understanding that she was going to be receiving Vicodin and she was going to be receiving her PCA for pain?
  • A. Potentially, as she needed it, correct. I mean, it's patient controlled. So if she's - the Vicodin is not giving her adequate relief for her pain as it's scheduled, then she would have that option of pushing the button and getting doses through the PCA.
  • Q. Now, I think you indicated before that pain and medication and that medication going up is something you look at as the physician; correct?
  • A. Uh-huh.
  • Q. Is that a yes?
  • A. Correct.

At this point it was the physician's obligation to check and make sure that the use of both oral and PCA pain medications were not being used excessively and masking any exacerbation in the patient's pain. With respect to his knowledge of this, Defendant Doctor also testified:

  • Q. Now, is that something that you look at as a physician when you check on the patients on a daily basis, basically how they did through the night and what they're getting for medication and how their pain is being controlled?
  • A.Well, you're asking about it and trying to find out, checking with both the patient obviously, which is the best reporter for how they're doing, but also checking with the nurse to see, I mean make some degree of difference, if it's -- yeah, their pain is controlled, but they're taking ten times more pain meds. Well, then you want to know that.
  • That's why a lot of times, oh yeah, I feel fine, but yet the nurse might tell you, yeah, that's because she's pushing the PCA button twice as often as usual. So you want to just kind of check on that. And the nurses will usually report that to you, if it seems like they're having, exhibiting -- if they're exhibiting a pattern of showing increasing pain med use.
Unfortunately, in this case, there was a wholesale failure on behalf of the physicians to monitor the patient's pain medications and to notice the patient's ever increasing need for pain meds to control her pain.

For example, on 9/15/10, the patient was given 3 doses of Vicodin. Even so, her average hourly dosing of Dilaudid remained similar if not higher than what it had been between 9/11/10 and 9/14/10. This should have alerted the physicians that the patient may be experiencing an exacerbation in her pain.

At 0759 hrs on 9/16/10, [treating physician] stated the following in his progress note: "Patient is still having abdominal pain and right sided shoulder pain. ... She will be started on Naprosyn 500 twice a day." From this note and a review of the record, it would have been clear to the treating physicians that the patient was still having pain in spite of using the PCA Dilaudid and the Naprosyn. Defendant Doctor testified:

  • Q. And so now in the morning on the 16th, he's saying she's having abdominal pain, right-sided shoulder pain, and she has hypoactive bowel sounds.
  • And first of all, that would be a change from her condition that you had found on the 14th and the 15th; correct?
  • A. Correct.
  • Q. When you said it looks like she's getting better; correct?
  • A. Correct.
  • Q. And in fact, the 16th would have been one of the days you were shooting for saying, hey, maybe she can go home on the 16th.
  • Would that be accurate?
  • A. I think that's fair, yeah.

Defendant Doctor knew there was a change in condition in the patient's pain complaints and, in addition to the PCA Dilaudid and Naprosyn, the patient was now be given Naprosyn to control her pain. On 9/16/10, in addition to her PCA Dilaudid, the patient received 5 doses of Vicodin 5/325 and 2 doses of Naprosyn 500 mg.

At 0840 hrs on 9/17/10, [treating physician] ordered Ultram 50 mg (d/c Naprosyn) after noting the patient "having a lot of pain in her abdomen." At 1610 hrs after noting the patient had "more pain," Defendant Doctor adjusted the patient's Vicodin 5/325 to "1 po q 3-4 hrs." At 1630 the nurse noted: "Still in pain, rate an "8"; crying at times. Defendant Doctor in." Vicodin was given at 1700 hrs and at 1815 the nurse noted the following: "No relief from Vicodin, pain ↑ to a "9". ... Defendant Doctor called. 2mg loading dose from PCA." By 1840 hrs the loading dose of 2 mg of narcotic pain medication was providing "no relief." At this point in time, the patient was 7 days postop and, instead of getting better, she had experienced an increase in pain and in pain medications over the past couple of days.

Now she was having an acute exacerbation of her pain that demanded investigation by Defendant Doctor. In response to the patient's exacerbation of pain, Defendant Doctor ordered a "CBC now." The labs at 1850 revealed a possible infectious process with a WBC of 11.2 and a left shift (Neuts: 91). At this point in time, it was highly probable that the patient had a surgical abdomen and that a failure to return her to the OR immediately would give rise to serious injury and/or death. The standard of care required Defendant Doctor to assume a postsurgical infection. With the exacerbation of pain, the large amounts of pain medications the patient was receiving and the left shift, Defendant Doctor should have immediately ordered an abdominal CT to see what was going on in the abdomen. If he was not going to do that, then he was required to take the patient back to the OR to explore her abdomen. He was negligent and breached the standard of care in failing to do either.

Instead of appropriately responding to the patient's labs and the signs of infection, at 1900 hrs Defendant Doctor ordered "Toradol 30 mg IVP every 6 hours PRN pain" which would only mask the ever increasing pain that the patient was experiencing. However, the Toradol provided the patient no relief. At 1930 hrs the nurse notes: "No relief, moaning, crying out." At 2000 hrs the nurse notes:

Pt moaning, crying out. Guarding abdomen. Abdominal pain rated 10/10 across entire lower abdomen. Restless and agitated due to no pain relief. ... Vicodin 5/325mg given po for pain. ... Ativan 0.5mg po given for anxiety.

At 2000 the nurse gives both Vicodin and Ultram in an attempt to control the patient's pain. At 2200 hrs the nurse noted the following:

VSS with slightly elevated BP 145/81. Lungs auscultated course bilaterally. ... Trace edema bilateral ankles. Bowel sounds very rare and distant. C/o pain in entire abdomen rated 10/10. RLQ firm and distended with bruising to area. ... Loose liquid brown stool with slight blood tinge. Patient restless and appears to be slightly anxious.

It is without a doubt that the patient should have been taken back to the OR and had her abdomen explored at this time. On 9/17/10, in addition to her PCA Dilaudid, the patient received 4 doses of Vicodin 5/325, 2 doses of Ultram 50 mg and 1 dose of Toradol 30 mg. The failure by Defendant Doctor to immediately take the patient back to the OR was medical malpractice and a breach in the standard of care.

The next time that Defendant Doctor sees the patient appears to be at 1005 hrs on 9/18/10. He notes: "rough day yesterday 2° pain, now under control, much happier. Defendant Doctor fails to comprehend at all the fact that the patient's pain is "under control" and she is "much happier" because she is receiving large amounts of pain medication. For example, her average hourly Dilaudid use from the PCA had jumped to approximately 2.05 mg/hr by 0255 hrs on 9/18/10. By 0555 hrs this hourly average rate was at 2.0 mg/hr. On top of that, the patient received the following oral medication of the 18th before Defendant Doctor even came in to see her:

  • 0145 hrs: Toradol 30 mg IVP
  • 0200 hrs: Vicodin 5/325
  • 0540 hrs: Vicodin 5/325
  • 0905 hrs: Vicodin 5/325
  • 0905 hrs: Toradol 30 mg IVP
  • 0905 hrs: Ultram 50 mg

Just one hour before Defendant Doctor saw the patient, she received 3 different pain medications as well as her PCA Dilaudid dosings. It would be unconscionable for a physician to know that a patient was receiving this amount of pain medication without taking immediate action to diagnoses the cause of the exacerbation in pain. It was a breach in the standard of care not Defendant Doctor not to have noticed this and not to have realized that the exacerbation in the patient's pain demanded an immediate return to the OR. Of note, on 9/18/10, in addition to her PCA Dilaudid, the patient received 7 doses of Vicodin, 4 injections of Toradol and one dose of Ultram.

Although the patient should have been returned to the OR on 9/17/10, it must be noted that the failure of Defendant Doctor to even appreciate the extraordinary amount or pain medications that the patient was on continued thru 9/23/10. This represented on going medical negligence and an ongoing breach in the standard of care.

B. THE PHYSICIANS FAILED TO NOTICE THE PATIENT'S SIGNS OF INFECTION AND INAPPROPRIATLEY PRESCRIBED THE PATIENT EVER INCREASING MEDICATIONS THAT MASKED THE PATIENT'S FEVER.

As discussed above, the patient clearly had an exacerbation of her pain and her clinical picture changed on 9/17/10. With respect to signs of infection, at 0615 hrs on 9/17/10, labs revealed a WBC of 11.3, which was high. This was a significant change because her previous labs at 0625 hrs on the 16th had revealed a WBC of 8.4. After the patient experienced her uncontrollable pain in the evening of the 17th (discussed above), Defendant Doctor ordered additional labs which revealed WBC: 11.2 H; Neuts: 91 H; Lymph: 6 L. Thus, in 24 hours the patient had experienced a significant bump in her WBCs and her differential was showing a left shift. With respect to the WBCs, Defendant Doctor testified:

  • Q. At 6:25 in the morning on the 16th, the day before, her white blood count was 8.4; correct?
  • A. Correct.
  • Q. And then at 6:15 in the morning on the 17th, when she had her increase in Dilaudid and all of the oral pain medications, were you aware that her white blood count had increased to 11.3?
  • A. Just a second. I'm not sure, at the specific time that it was drawn, that I was aware of that. I didn't see her that afternoon until 1610.
  • Q. You would agree that an indication in her -- or an increase in her white blood count to 11.3 would be high and be abnormal; correct?
  • A. 11.3 is, yes, just -- It's high. It's barely high. Upper range of normal is 11.0. Hers was 11.3.
  • Q. So it could be a sign --
  • A. Could be a sign.
  • Q. -- that she had an infection going on?
  • A. Correct.
  • Q. And in fact, when those labs were redone at 1850 hours that same day, she was -- her white blood count was still high at 11.2; correct?
  • A. Correct.
  • Q. And were you aware of that at the time?
  • A. Yes.
  • Q. And although neutrophils and lymphocytes were not checked at 6:15 in the morning, they were checked at 1850 in the evening; correct?
  • A. Correct.
  • Q. And her neutrophils were high at 91?
  • A. Correct.
  • Q. And lymphocytes were low at 6; correct?
  • A. Correct.
  • Q. What did that tell you, in combination with the white blood cell increase, as far as a sign of infection?
  • A. Well, again, that was a potential indicator, but you would expect that if indeed she had something infectious going on in her abdomen, it wouldn't stay stable, which is what it did. 11.3, 11.2. You would expect that any kind of significant infectious process in her abdomen would cause that white count to keep going up. That, you know, it was 11.3 in the morning and at 1850 it was 15 or 16 or 20.
  • You would expect that as she responded to the infection or the potential infection in there, that it would change. It would go up. And the fact that it didn't made us a bit more comfortable that it didn't seem that we were dealing at that point in time with some kind of acute infectious complication.
  • Q. How would antibiotics affect the white blood count?
  • A. Tend to cover it. Potentially moderate the body's response to an infection.
  • Q. And keep the white blood count down; correct?
  • A. Potentially keep it down.
  • Q. And you were aware on the 16th that [treating physician] had started the patient on Bactrim; correct?
  • A. Correct. Yes.
  • Q. So at the time that you saw her elevated white count on the 17th and you knew she was having this increase in pain, you were also aware that she had been on antibiotics since the 16th; correct?
  • A. Correct.

Within a reasonable degree of medical certainty, the patient likely had an abdominal infection on 9/17/10, as indicated by the increased WBCs and left shift. Although the patient had been placed on antibiotics on the 16th, her WBC still rose on the 17th. Defendant Doctor failed to appreciate the fact that the labs, along with the acute exacerbation in the patient's pain revealed an abdominal infection that required an immediate return to the OR.

Attached as Exhibit K is a graphical depiction of the patient's WBC labs and the affect of the antibiotic that was initiated by [treating physician] on 9/16/08. As one can see, the patient's WBCs increase on the 17th due to the likely infection. However, as the antibiotic gets on board, the WBC counts slowly decrease. However, once the antibiotic is discontinued at 2135 hours on 9/21/10, the WBC counts begin to increase.

Attached as Exhibit L is a graphical depiction of the patient's Neutrophil lab results and the affect of the antibiotic that was initiated by [treating physician] on 9/16/08. As one can see, the patient's Neuts were high on the 17th due to the likely infection. However, as the antibiotic gets on board, the Neuts slowly decrease. However, they are always elevated and reflected a left shift and sign of infection. Once the antibiotic is discontinued at 2135 hours on 9/21/10, the Neutrophil counts begin to increase.

It was negligent and a breach in the standard of care by Defendant Doctor not to consider the effect of the antibiotics on the patient's labs and not to appreciate the signs of infection in this patient.

In addition to the laboratory studies, a patient will often have a fever when an infectious process begins. In this case, there are times when Defendant Doctor notes that the patient is "afebrile" (without fever). For example, in his progress note on 9/18/10, the morning after the patient's clinical condition clearly changed, he noted that the patient was "afebrile." However, Defendant Doctor failed to recognize or appreciate the fact that the patient was receiving repeated doses of 325 mg of acetaminophen every time she received a dose of Vicodin 5/325. For example, on 9/16/10 the patient received 5 doses of Vicodin throughout the day for a total acetaminophen dosage of 1,625 mgs. This would have been sufficient to mask any signs of a fever in the patient. On 9/17/10, the patient received 4 doses of Vicodin throughout the day for a total acetaminophen dosage of 1,325 mgs. This would have been sufficient to mask any signs of a fever in the patient on 9/17/10. On 9/18/10, the day after the patient had an acute exacerbation in her pain, the patient received 7 doses of Vicodin throughout the day for a total acetaminophen dosage of 2,275 mgs. This would have been sufficient to mask any signs of a fever in the patient on the 18th. These dosings of Acetaminophen only increased in the days leading up to the 9/23/10 surgery as shown below:

  • 9/19/10: Vicodin pills: 9 - Acetaminophen total: 2925 mg.
  • 9/20/10: Vicodin pills: 8 - Acetaminophen total: 2600 mg.
  • 9/21/10: Vicodin/Percocet pills: 10 - Acetaminophen total: 3,250 mg.
  • 9/22/10: Percocet pills: 12 - Acetaminophen total: 3900 mg.

As the infection worsened in the patient and the patient's abdomen, the physicians gave her more and more acetaminophen to mask her fever. Even so, the patient's fever began to break through. In the evening hours of 9/19/10, the patient complained of "chills" and her temperature was starting to creep up. This was despite receiving a total of 2,925 mg of Acetaminophen on 9/19/10.

On 9/20/10, the patient was febrile throughout the day. In fact at 1800 hrs the patient's temperature was 102.4 and at 2000 hrs it remained high at 101.7. This is despite receiving a total of 2,600 mg of Acetaminophen on 9/20/10.

At the patient's fever attempted to break through the Acetaminophen that was masking this sign of infection, increasing doses were administered. During the day on 9/21/10, the patient received a total of 3,250 mg of Acetaminophen. On 9/22/10, the total daily dose of Acetaminophen increased to 3,900 mg.

The above represents a wholesale failure on the part of the physicians to realize that the ever increasing Acetaminophen was masking one of the signs of infection that they were required to monitor. This was a breach in the standard of care.

CAUSE OF PATIENT'S INJURIES:

It goes without saying that Defendant Doctor's unnecessary removal of the patient's colon precipitated a cascade of events and injuries that never would have occurred but for Defendant Doctor's negligence.

In addition, if Defendant Doctor had appropriately and timely resuscitate the patient when she had evidence of volume loss and shock, within a reasonable degree of medical certainty the patient would not have suffered an ischemic injury to her small bowel or to her anastomosis site. Thus, she would not have lost any of her small bowel and would not be facing a probable small intestinal transplant in the future.

Lastly, by 9/17/10, Defendant Doctor should have known that the patient was experiencing the early signs of an abdominal infection. It is more likely than not that had the patient been taken back to the OR on the 17th (as opposed to the evening of the 23rd - 6 days later), her outcome would have been dramatically different. Although she may have lost some small amount of her small bowel due to ischemic injury, more likely than not she would have been left with more than a majority of her small bowel intact and would not be facing her likely small bowel transplant.

CERTIFICATION OF EXPERT WITNESS

I hereby certify that I have reviewed all of the documents identified in the above Interrogatory. I also certify that the above interrogatory accurately reflect my preliminary opinions and conclusions within a reasonable degree of medical certainty in my profession. I reserve the right to modify the above opinions and conclusions if additional information is provided to me.

Dated this 23 date of April 2012.

/S/

[Surgical Expert hired by Hixson & Brown]"


As will be discussed in more detail later, the pathologist, [treating physician], found no evidence of any perforation of any diverticulum in Patient's colon.

As will be discussed in more detail later, the pathologist, }treating physician], found no evidence of any "abscess, fistula or obstruction in Patient's colon.

Some patients may have right quadrant pain, but it is not as typical. It is believed that diverticulitis is more prevalent in the descending and sigmoid colons (LLQ) due to the increasing intraluminal pressures seen in the distal colon.

These are key findings on CT scan that were not present in Patient's subsequent CT scans.

Within a reasonable degree of medical certainty, Patient did not suffer from diverticulitis in August and September of 2010.

From a medical standpoint, it appears more likely that Defendant Doctor failed to see the mentioning of the ovarian cyst on the CT reports prior to recommending the removal of Patient's colon. Of course, if this is what occurred, it would be a breach in the standard of care [medical negligence] for Defendant Doctor not to have noticed the ovarian cyst in the CT reports and not to have appropriately counseled the patient.

Defendant Doctor, p. 68, L.3-6:

A. I think small cysts are less likely to be painful. Could it be, yes, possibility. But as I just explained, more likely, cysts are much more likely to be symptomatic once they reach a larger size.

This typo is in the original record. Assume it was to say the patient "has had trouble in the past with cysts on her ovaries."

Defendant Doctor's note of 8/3/10 states: "CT scan c/w diverticulitis." Since the radiologist did not mention diverticulitis, it is assumed that this statement is based on Defendant Doctor's own review of the CT scan. Due to a lack of diagnostic findings in the CT, it was not consistent with diverticulitis and it was a breach in the standard of care for Defendant Doctor to find that it was.

It is important to note that the patient's primary physician on 8/4/10 stated: "She is going to have to have colonoscopy." (p. 0125). A colonoscopy (or barium enema) was indicated because at this point in time there was insufficient medical evidence to confirm that diverticulitis was the cause of the patient's problems.

It is important to note that although Defendant Doctor later testified that he removed the patient's entire colon because there was also evidence of thickening and inflammation in the ascending colon, the patient had absolutely no clinical findings to support any diagnosis of diverticulitis in the ascending colon.

Not only would a 3.8 cm cyst be a source of tenderness or pain during deep palpation, but Defendant Doctor testified that during the surgery he discovered that the ovarian cyst was adherent to the colon. This adherence to the colon may also cause pain or tenderness upon deep palpation. Defendant Doctor would have been aware of this fact when he saw the cyst and its adherence to the colon, which was prior to him dissection and removing the patient's entire colon.

The patient had undergone a prior resection of her sigmoid colon.

This testimony by Defendant Doctor under oath is directly contrary to Defendant Doctor stating that he looked at the 7/24/10 CT and saw the cyst and determined it was "small."

It should be noted that palpation is totally subjective. This would not be an objective finding supporting, on its own, the removal of the patient's entire colon. The pathologist's findings that the colon had no areas of inflammation or thickening are objective findings revealing that Defendant Doctor's subjective findings based on palpation were inaccurate.

The operating room personnel are required to write down what specimens are being submitted to pathology for examination. In this case, the Pathology Consultation Request form (Exhibit 15) indicated that the only specimen being submitted to pathology from the operating room was "large bowel." The ovary and the ovarian cyst was not identified as a specimen and such omission would indicate from a medical standpoint that it was not sent.

This is referred to as a root cause analysis.

Defendant Doctor testified that the ovary would have been handed to the scrub nurse who would have then placed the specimen on the back table to be packaged by the circulating nurse.

This is a significant deviation that reveals the significant degree of shock that the patient experienced.

It must be noted that a bowel and anastomosis can become ischemic in as little as two (2) hours if blood perfusion is interrupted or is inadequate. This made it paramount for Defendant Doctor to act immediately and aggressively to restore perfusion.

Within a reasonable degree of medical certainty, the abdominal CT would have revealed post surgical changes that mandated an immediate return to the OR.