Lawyers at DBMS successfully litigate a wide variety of civil cases and argue appeals in some of the most challenging jurisdictions in the country.
Handzel v. Defendant Obstetrician-Gynecologist
Plaintiff, a 45-year old divorced mother of two children, came to defendant’s office in December 2003 and was diagnosed with a Bartholin gland cyst/abscess. The Bartholin glands are located on either side of a woman’s vaginal opening and provide lubrication during sexual activity.
Defendant initially prescribed antibiotics to treat the infection, then at the next visit, performed an incision and drainage of the abscess using a cruciate incision. This treatment was successful but several months later, the Bartholin’s cyst/abscess reoccurred. Defendant recommended surgical excision of the gland due to the recurrent nature of the problem and a concern regarding possible cancer.
Defendant performed the Bartholin’s gland excision on March 29, 2009. At the end of the surgery, plaintiff developed a large hematoma which was drained by the defendant. At a follow-up office visit, defendant noted a small separation of the wound with a defect in the labia. Defendant referred the patient to a urogynecologist who diagnosed post-operative infection and recommended antibiotics and revision sugary to correct the labial defect. On April 27, 2004, defendant performed surgery to debride the wound, remove necrotic tissue and re-sew the wound to repair the defect in the labia. The urogynecologist assisted with the revision surgery.
Defendant’s operative report, dictated several months after surgery, indicated that the wound edges were well approximated without tension at the end of the revision surgery. At the first post-operative visit, however, the wound had once again separated and a small defect in the labia was noted.
Plaintiff alleged that defendant negligently recommended excision of the Bartholin’s gland when a more conservative, less risky procedure known as marsupialization should have been performed. Plaintiff argued that excision of the gland should be done only as a “last resort” and that the risk of cancer was extremely remote as only 300 Bartholin gland cancers have been identified in the medical literature worldwide. Plaintiff alleged that defendant failed to advise her of her options prior to performing the excision surgery.
Plaintiff further alleged that defendant improperly performed the excision surgery and that during that surgery he negligently removed a “huge chunk” of normal labia along with the cyst. Plaintiff also claimed that defendant subsequently altered/falsified the medical records to cover up his negligence. Plaintiff claimed that as a result of defendant’s negligence, 2/3 of her labia is missing, leaving her “mutilated” and “hideously deformed” with severe pain, difficulty with urination, menstruation and vaginal dryness, and completely unable to engage in sexual relations.
The defense argued that excision of the Bartholin’s gland is the treatment of choice for recurrent Bartholin cyst in a woman over age 40 due to the risk of cancer. Further, this patient was at increased risk of cancer due to her smoking history and history of cervical dysplasia. Here, defendant had already attempted a less risky procedure similar to a marsupialization but the problem had reoccurred. The plaintiff consented to the excision surgery after defendant properly advised her of her options.
The plaintiff’s expert had testified that the defendant employed an improper surgical technique by using an elliptical incision to excise the gland but the expert was impeached on cross-examination with an excerpt of a standard text that recommended utilizing an elliptical incision to excise the Bartholin gland.
The defense further argued that defendant did not remove any portion of the labia and that when plaintiff developed complications after surgery, they were promptly diagnosed and treated by defendant within the standard of care. The loss of one Bartholin’s gland should not significantly affect lubrication.
The defense argued that the defect in the labia after the excision surgery was caused by recurrent infections in the area. The defect was appropriately repaired during the revision surgery but the wound again separated due to poor healing caused by plaintiff’s recurrent infections and cigarette smoking. The permanent labial defect or missing piece of the labia was caused by the wound separation with retraction and scarring during the healing process. Furthermore, the permanent labial defect is only 2 cm, or less than one inch, and would not explain the plaintiff’s current complaints.
Plaintiff asked the jury to award in excess of $1.7 million. After deliberating for less than one hour, inclusive of lunch, the jury returned a verdict for the defendant.