The complaint of this action sets forth causes of action sounding in medical malpracticeand lack of informed consent wherein the woman alleges that from January 16, 2003 through May 12, 2004, the accused hospital and her attending gynecologist undertook to treat her for certain gynecological complaints and during that care and treatment. She also alleges that her attending gynecologist departed from good and accepted standards of medical care and failed to inform her of the reasonably foreseeable risks, benefits and alternatives to the treatment proposed and rendered. She further claims that her attending gynecologist failed to obtain an informed consent, causing her to sustain personal injury including sterility, total abdominal hysterectomy and removal of both ovaries and both fallopian tubes.
The attending gynecologist and the hospital move for summary judgment to dismiss the complaint on the basis that the surgery performed was warranted and performed properly and that proper informed consent was given to the woman.
To grant summary judgment it must clearly appear that no material and issue capable of trial of fact is presented. The gynecologist and the hospital have the initial burden of proving entitlement to summary judgment. Failure to make such requires denial of the motion, regardless of the sufficiency of the opposing papers. A New York Injury Lawyer said that once such proof has been offered, the burden then shifts to the woman. In order to defeat the motion for summary judgment, the woman must submit evidence in admissible form and must show facts sufficient to require a trial of any issue of fact. The opposing party must present facts sufficient to require a trial of any issue of fact by producing evidentiary proof in admissible form and must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established.
In support of the motion, the attending gynecologist and the hospital have submitted an attorney’s affirmation, copies of the pleadings and answer, bill of particulars and supplemental bill of particulars, IRS records, medical records of a university hospital dated May 21, 2001, medical records of a memorial hospital dated March 4, 2000, and a physician’s copies of transcripts of the examinations of the woman, and testimonies of the woman’s friend, and the affirmation of the attending gynecologist’s expert.
A Long Island Personal Injury Probate Lawyer said that in opposing the motion, the woman has submitted an attorney’s affirmation, her various medical and operative records, a copy of the transcript of the examination of her attending gynecologist and the affirmation of the woman’s medical expert.
The woman testified that she was due to deliver on July 17, 1975 and she has never been married. She has a history of interstitial cystitis, polycystic kidney disease and endometriosis. She fifteen years old when she was diagnose with endometriosis by a physician who performed a biopsy procedure from the university hospital and was treated in Manhattan by a obstetrician gynecologist. Two surgeries were performed by laparoscope for endometriosis and cysts and she was placed on prescribed with medication but developed allergic reactions and was then placed on birth control pills. She was then treated by another physician for about a year and a half but could not remember the doctor’s name. During that time, she had another laparoscopic procedure performed at the university hospital for endometriosis and she was placed on medication to which she reacted. She was also undergoing treatment with another physician who also performed a laparoscopic examination and laser treatment for pelvic endometriosis and scar tissue. Additionally, she presented to the emergency rooms of various hospitals due to heavy bleeding and pain. She was treated next by another physician who also performed laser treatment at the university hospital for endometriosis. The procedure made her period lighter and less painful for about four to five months. She had two miscarriages and when she was in her late twenties, she was diagnosed with polycystic kidney disease. Thereafter, she began treatment with her attending gynecologist.
On her first visit with her attending gynecologist, the woman states she advised him that she had been trying to conceive for four months but her pregnancy test was negative. Thereafter, she was admitted by her attending gynecologist in a hospital for about a week to treat an infection. A Manhattan Personal Injury Lawyer said the attending gynecologist called a urology consult and she was diagnosed with interstitial cystitis. Her next visit with her attending gynecologist was for a painful and heavy period. He referred her to the reproductive specialist for fertility issues. She testified she was advised by the reproductive specialist that she could have children, but not with her current partner who had a low sperm count. Thereafter, she stated that her attending gynecologist told her it was time to consider having a hysterectomy as that was her only cure for the endometriosis. He explained that a hysterectomy would give her a better life with no more periods although she could have some hot Hashes and a few night sweats. Her attending gynecologist also gave her the name of an allergist to see about desensitizing her to some of the medication she had previously reacted to and used in the treatment of endometriosis. She did not see the allergist but returned and had a conversation with her attending gynecologist about having the hysterectomy, which was thereafter scheduled. Just before she was administered anesthesia, she was advised that tubing would be placed in her ureters so they would not be cut during surgery. After surgery she woke up crying and felt something was wrong. A week later, she was in pain on her right side and she was still bleeding, but was advised that she would heal slowly. She also was experiencing hot flashes, she couldn’t sleep and her bones were hurting. She continued to bleed for a month or more and was given medication for hormone replacement. She developed problems urinating and was diagnosed with interstitial cystitis due to hydro-distention. She was still experiencing pain in her right side and had vaginal bleeding. She testified that her attending gynecologist told her to see a counselor and that he was not ordering any tests and that there was nothing wrong with her.
She then saw another doctor who examined her and found a large mass on her right side and referred her for an evaluation of her kidneys. The physician advised her that she had polycystic kidneys and performed surgery. The woman’s the tests revealed that part of her ovary was left inside her body at the time the hysterectomy was performed. The ovary was filled with blood, which was why she had so much pain when the estrogen patch was removed. She was recommended to see a doctor in Manhattan.
The Manhattan doctor ordered a CAT scan and performed laser surgery for endometriosis and scar tissue removal and recommended her to another doctor due to her inability to urinate since the hysterectomy and for treatment of a bladder infection. She was also referred to another doctor for her bloody bowel movement. She testified that the Manhattan doctor advised her that she did not need the hysterectomy and that her attending gynecologist only took out the organs but left the disease behind. The Manhattan doctor further states that the disease would only continue and that she should have only had a good cleaning instead of the hysterectomy.
A friend of the complainant testified to the effect of her experiences in accompanying the woman to the various treating physicians, and the pain and problems encountered by her. The accused parties’ expert has set forth in his affirmation that he is licensed to practice medicine and is board certified in obstetrics and gynecology. It is his opinion based upon a reasonable degree of medical certainty that the attending gynecologist and the hospital did not depart from accepted standards of care and practice and did not proximately cause any harm to the complainant.
The woman’s expert claims with a reasonable degree of medical certainty that the attending gynecologist departed from accepted standards of medical care when he performed a total abdominal hysterectomy and removal of both ovaries and fallopian tubes. These departures are the proximate cause of injury to the woman. The woman’s expert sets forth the physiology of endometriosis and states that while endometriosis can cause chronic pelvic pain, there are many additional gynecologic conditions that may be the source of chronic pain, and that other diseases, such as irritable bowel syndrome and interstitial cystitis can also cause pelvic pain. Psychological factors may contribute to the pain as well as the production of adhesions pulling on normal tissue. When the woman visited the attending gynecologist, she thought she might be pregnant and miscarrying, but was not pregnant. Two weeks later, she had severe left lower back pain, complaints strongly suggestive of kidney problems, and was sent to the hospital for admission and evaluation. The pelvic CT scan showed multiple cysts scattered throughout the liver, a left ovarian cyst, and bilateral medullary sponge kidneys. She was treated with antibiotics and discharged.
The woman’s expert opines that the attending gynecologist departed from the accepted standards of care by adopting a diagnostic bias by adopting the patient’s history of endometriosis as the cause of her pain and stopped there instead of investigating the other possible causes of the pain.
The woman’s expert further opines that the attending gynecologist departed from the standard of care by not providing her with adequate medical information that the surgery may not resolve her chronic pelvic pain; and that her pain could be caused or contributed to by other conditions or adhesions can cause pain or worsen her condition. The woman’s expert sets forth that sterilization to treat pain in a woman of child-bearing years is a surgery of last resort, and definitive surgical treatment is reserved for patients for whom future fertility is not a consideration, and that the attending gynecologist failed to discuss with the woman the psychological impact of removal of both ovaries, her cervix and uterus while she was still considering the possibility of pregnancy, and further failed to refer her to a therapist regarding the possible emotional consequence to sterilization.
The woman’s expert further opines that the surgical pathology report documents do not support the attending gynecologist’s representation that the woman had severe and extensive stage IV endometriosis as it reveals only modest endometriosis on one fallopian tube and equivocates as to whether there was a cyst on the ovary. Based on the report, the attending gynecologist should not have removed all the organs as it was not indicated.
Based upon the foregoing, it is determined that there are factual issues raised by as experts’ conflicting opinions concerning whether or not the total abdominal hysterectomy and removal of both ovaries and both fallopian tubes was indicated; whether other causes of the pain were ruled out prior to the surgery; whether proper informed consent was given to the plaintiff of child-bearing years who was trying to conceive; whether failing to remove the entire right ovary caused or contributed to her pain and injury; whether differential diagnoses were made prior to surgery; and whether or not the accused parties departed from accepted standards of care in the care and treatment of the woman, and if those departures were the proximate cause of her claimed injuries. The motion is granted.
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