Facts

Plaintiff Karen Burkehanner, at age 52, underwent a laparoscopic supra-cervical hysterectomy in Jan. 2008 due to uterine blood fibroids and an enlarged uterus. Post-operatively, she had normal abdominal pain and some rare urinary loss. By her second post-operative visit, she was making a normal recovery.

By early March 2008, plaintiff admitted to making a full recovery from surgery. Approximately 18 months later, plaintiff was diagnosed with a left ureter obstruction. By this time, there was only 5 to 11 percent left kidney function. Plaintiff essentially has solitary kidney function.

PLAINTIFF'S CONTENTIONS:
Plaintiff contended that defendant grasped the ureter during surgery, which caused the obstruction; and that the surgery was a high risk case because plaintiff had three prior pelvic surgeries, a large uterus, and significant blood loss during surgery. Plaintiff claimed that under this theory of a high-risk case, defendant should have performed cystoscopy, which plaintiff's expert claimed would have confirmed there was an injury to the ureter.

DEFENDANT'S CONTENTIONS:
Defendant maintained that his care and treatment met the standard of care at all times. An injury to a ureter is a known complication of the surgery and can happen in the absence of negligence.

Settlement Discussions

Plaintiff made an initial demand of $250,000. At the time of trial, plaintiff requested $200,000 for past pain and mental suffering and $500,000 for future pain and mental suffering.

Result

Defense verdict as to Dr. Biter.

Other Information

EXPERT TESTIMONY: Plaintiff's expert testified that plaintiff suffered a direct injury to her ureter during a laparoscopic hysterectomy performed by defendant, claiming defendant must have grasped the ureter with the jaws of either the harmonic scalpel or gyrus forceps. Plaintiff's expert opined that defendant was below the standard of care for not performing a cystoscopy with indigo carmine dye at the completion of plaintiff's laparoscopic supra-cervical hysterectomy; and that cystoscopy would have discovered the injury to the ureter had it been done. Plaintiff's expert also testified that it was below the standard of care for defendant not to further investigate a finding of microscopic hematuria in a dipstick urinalysis at plaintiff's post-operative appointment, despite it being documented plaintiff was still having vaginal spotting from the surgery. Defendant's expert Dr. Stephen V. DiMarzo testified that defendant met the applicable standard of care at all times. In his opinion based upon review of the clinical information and the retrograge pylegram, plaintiff suffered an obstruction to her left distal ureter caused by latent thermal spread where scar tissue formed and obstructed the ureter following surgery. Plaintiff never presented with any typical symptoms post-operatively, which would indicate an obstruction, such as flank pain, fever, nausea or vomiting. Dr. DiMarzo testified that during surgery, defendant visualized the ureters and at the end of surgery noted visualization, saw peristalsis, and did not see any indication of direct or thermal injury to the ureters. Dr. DiMarzo testified it was common to have a finding to microscopic hematuria at a patient's first post-operative visit and it was within the standard of care to question the patient and with a response that patient was still spotting from surgery, no further investigation would be required. Dr. Robert W. Steiner testified that plaintiff had lost function of her left kidney as a result of her left ureter obstruction. However, plaintiff presents most like a kidney donor for which there is ample research and statistical analysis for him to opine it was more likely than not plaintiff would not need future medical care associated with her left ureter obstruction. INSURER: The Doctor's Company.

Poll

12-0

Length

seven days