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?
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.[1]
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[2], 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.[3]
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 [4]
· 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.[5] 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.