The plaintiff, a young vibrant female, underwent a routine gynecological operation known as a myomectomy to remove non-cancerous growths from her uterus.

During the surgical procedure, the gynecologist removed a total of 34 fibroids from the plaintiff’s uterus.  Before he could even get to the plaintiff’s uterus, however, he first had to dissect through several loops of the plaintiff’s small bowel that were densely adhered to her uterine walls.

During the dissection of these adhesions, the surgeon inadvertently injured the outer coat of the small bowel.  In accordance with the standard of care, the surgeon then immediately recognized the tear and promptly repaired it with two sutures.  What he failed do, however, was then go on to carefully check the remaining portion of the plaintiff’s small bowel, all approximately 23 ½ feet of it, for other accidental injuries that he could have caused while pulling apart the dense adhesions with his fingers.

Instead, he completed the operation and sent the plaintiff to the recovery room in what he believed was stable condition.

During the 72 hour period following the surgery, the plaintiff’s condition rapidly deteriorated.  She developed severe abdominal pain, bloating and dangerously high fevers.  Her respirations and heart rate increased dramatically and her blood pressure skyrocketed.  Her system literally began to shut down.

Despite all of these telltale signs and symptoms of postoperative sepsis, it was not until one of the nurses observed a greenish yellow material oozing from the plaintiff’s surgical wound that anyone truly became suspicious that perhaps another injury to her small bowel had occurred and gone undetected at the time of her original myomectomy surgery.  The greenish yellow material was confirmed to be fecal material.  The small bowel is a closed tube like structure making up part of the human gastrointestinal tract.  Fecal material is normally completely contained within its walls.  When a hole opens up in the small bowel, however, it allows these contents to empty into the rest of the abdominal cavity.  Enough of that material was obviously allowed to accumulate inside of the plaintiff’s stomach without being detected to cause it to spill out of her abdominal incision.

Within hours of observing the fecal material oozing from her wound, the plaintiff was brought emergently to the operating room to undergo an exploratory laparotomy of her abdomen.  At that time, a general surgeon with specialized knowledge of the plaintiff’s intestinal tract identified an almost complete transection of her small bowel several centimeters from the original injury to the outer layer that obviously went undetected at the time of the original surgery.

Despite all of the general surgeon’s efforts to repair the injury to the plaintiff’s small bowel, the delay in the diagnosis resulted in the plaintiff developing septic shock, a life-threatening condition, and severe hypertension (high blood pressure) requiring the administration of presser drugs to restore the plaintiff’s blood pressure.  The plaintiff also became severely hypernatremic requiring massive amounts of free water administration. After the operation, the plaintiff was started on a total parenteral nutrition (TPN) regimen whereby her entire nutritional support was being provided intravenously in order to bypass the normal eating and digestion process.  This was done in an effort to keep fecal material away from the repaired portion of the small bowel in hopes of allowing it to heal better.

Unfortunately, the laceration was simply too big to begin with; and the 3 day delay in re-operating proved almost fatal.

Approximately 10 days after the general surgeon’s operation to fix the hole left by the gynecologist, there was recurrent leakage of intestinal contents emanating from her surgical wound that was indicative of a repair that had broken down.  The plaintiff was once again emergently taken to the operating room to undergo an exploratory laparotomy which revealed a leak at the site of the repaired perforation.  In light of the plaintiff’s deteriorating condition, the operating surgeon decided to cut out the injured portion of the plaintiff’s small bowel and to sew the two fresh ends back together.  Then, in an effort to allow the repaired portion to heal better, the operating surgeon also decided to divert an ileostomy in order to divert fecal material away from the repaired section of the plaintiff’s small bowel.  Part of the plaintiff’s small intestine was brought to the surface and opened out onto her skin through a hole allowing fecal matter to be collected in a bag. Over time, after a long period on TPN, broad spectrum IV antibiotics and a temporary colostomy bag, the plaintiff’s infection subsided and she was able to go home.

Since that time, she has experienced several complications stemming from the original undetected injury to her small bowel, including the need for a total hysterectomy, multiple hernia repairs and small bowel obstructions.

Notwithstanding the 3 day delay in diagnosing the plaintiff’s small bowel perforation after the original myomectomy, Cooper Sevillano also criticized the gynecologist’s actions for failing to check the remaining portion of the plaintiff’s small bowel after detecting, and subsequently repairing, the original injury to the outer layer.

Cooper Sevillano argued that the standard of care dictated that the gynecologist should have carefully examined the entire small bowel before completing the operation.  Cooper Sevillano provided a simple basis for the rule: since it is not uncommon for more than 1 perforation to occur in a bowel segment during a difficult dissection, the entire small bowel must be run in order to rule out (or identify) any additional injuries that may need repairing.  Cooper Sevillano argued that in the alternative, given the gynecologist’s inexperience with small bowel injuries, that he should have obtained an intraoperative general surgery consult at the time of the original myomectomy in order to check the integrity of the remaining portion of the plaintiff’s small bowel.

The plaintiff argued that had the injury been identified and repaired at that time, her morbidities including the chance of going into septic shock would have all but been eliminated. In his defense, the gynecologist argued that he had inspected the plaintiff’s small bowel prior to completing the operation.  He further contended that there were no other injuries at the time of surgery and that the ‘hole’ that formed mere centimeters away from the original injury had occurred spontaneously overtime due to no fault of his own.  The gynecologist’s attorneys hired an expert in pathology who was prepared to testify that the ends of the small bowel that were cut off by the general surgeon and preserved during the repair surgery suggested that the injury was due to a spontaneous rupture as opposed to an unrecognized injury at the time of the original myomectomy.

Cooper Sevillano countered that the hole was simply too big and the timing of the recent myomectomy operation too convenient to suggest anything else as the cause for the hole.  Cooper Sevillano also established through the deposition of the assistant surgeon that he did not recall the gynecologist “running the bowel” at the time of the original myomectomy operation before closing the plaintiff up.

Cooper Sevillano also established through the deposition of the general surgeon who performed the operations to repair the perforated bowel that it would have been nearly impossible for the gynecologist to have run the bowel at the time of the myomectomy without first having dissected out several additional dense adhesions that would have stood in his way.  Cooper Sevillano established that these adhesions were present at the time of the general surgeon’s repair operation, were unlikely to have formed between that operation and the myomectomy, and would have needed to have been “taken down” before the gynecologist would have physically been able to run the bowel as required by the standard of care.

As a result of the undetected perforation and resulting near death complications, the plaintiff hired Cooper Sevillano to sue the gynecologist who performed the myomectomy, his assistant and the local hospital where the initial operation and subsequent hospitalizations took place.

After a full day mediation followed by extensive in-court settlement negotiations that took place on the eve of trial, Cooper Sevillano negotiated a confidential seven figure settlement on behalf of the plaintiff as against all defendants, the majority of which was assumed by the gynecologist who performed the original myomectomy.

When the plaintiff presented to a local hospital to undergo a routine out-patient urological procedure known as a TURP (transurethral resection of his prostate), the last thing on his mind was waking up with an injury to his lower back.

However, when he came out of anesthesia with excruciating lower back pain, he realized something was terribly wrong.

Initially, hospital personnel dismissed the plaintiff’s complaints, informing him that it was only a temporary condition due to the positioning at the time of surgery and would go away on its own.  They even began to process the plaintiff to be discharged and sent home.

But the plaintiff refused to leave.  He demanded they first figure out what was wrong.

After being admitted later that day, the plaintiff spent the first day and a half in a hospital bed on heavy doses of morphine.  On day 2, he was seen by one of the hospital’s orthopaedic surgeons.  The orthopaedic surgeon examined the plaintiff’s back and took X-rays.  Surprisingly, the X-rays showed a compression fracture of the L2 vertebral body where the corner of the vertebrae appeared to have broken off from the rest of the bone.

Despite what would seem like a clear sign of the plaintiff’s pain, the orthopaedic surgeon ruled out the compression fracture as the root of his current problem, citing to the lack of any recent trauma to explain it.  Instead, the orthopedic surgeon classified the fracture as an incidental finding and advised the plaintiff to walk around as much as he could tolerate.

Curiously, the hospital’s orthopaedic surgeon also ordered an MRI of the plaintiff’s lower back.  An MRI is a more sophisticated type of X-ray that uses magnets to better visualize the brain and the spinal cord and the non-bony parts or “soft-tissues” of the body, particularly, the muscles, ligaments, tendons and nerves.  Although the MRI scan of the plaintiff’s lower back also revealed an L2 compression fracture, the test was not done until after the plaintiff saw the orthopedic surgeon and the orthopedic surgeon never went back to see the plaintiff after the test was completed and before the plaintiff was sent home.

On day 3 of his admission to the hospital, the plaintiff was seen by a specialist in pain management.  At no time before, during or after this consultation did the pain management specialist ever become aware of the positive X-ray or MRI findings of the L2 compression fracture.  In fact, it (the fracture) is not even mentioned in his two page hospital consultation report.  The pain specialist diagnosed the plaintiff with a sprained back, prescribed pain medicine and set him up for a course of physical therapy.

On day 4, the plaintiff was sent home.  After about a week at home with no relief, the plaintiff made an appointment to see his own orthopaedic surgeon.  After obtaining his own X-rays and conducting his own physical examination of the plaintiff, the orthopaedic surgeon diagnosed the L2 vertebral compression fracture as the cause of the plaintiff’s low back pain and classified it as an acute vs. subacute fracture of moderate to severe severity.

In other words, the type of fracture the plaintiff sustained was much different than the type of compression fracture seen in osteoporotic older adults.  Rather, the plaintiff’s orthopedic surgeon explained that it was a traumatic type of fracture that required a significant amount of force to break the way it did.  Like a fall from a height.  Or being dropped from a bed or gurney.  Additionally, the plaintiff’s orthopedic surgeon explained that the fracture was new, meaning the break had occurred sometime within the last 4 weeks of his examination, which also happened to coincide with his admission to the hospital.

To Cooper Sevillano, this time table was all too convenient to simply ignore. In search for answers, the plaintiff hired Cooper Sevillano to pursue a lawsuit against the hospital.  During the pre-trial phase of the lawsuit, Cooper Sevillano was unable to uncover any incident that had occurred at the hospital that resulted in the plaintiff’s compression fracture.  There was no evidence that he had been dropped; no evidence that he had fallen; in fact, there was no evidence of any unusual event whatsoever.

Or at least no one at the hospital with knowledge of any such event was willing to talk about it.

That could have easily ended the case.  But Cooper Sevillano would not quit.  Instead, the attorneys at Cooper Sevillano worked backwards and invoked a legal doctrine that first originated in English courts all the way back in 1863 called res ipsa loquitur.

Res ipsa loquitur is a Latin phrase which translates literally into “the thing speaks for itself”.  The doctrine recognizes that there are times in the law when the mere fact that an act occurred is enough to prove that a defendant had to have been negligent.

Despite its straightforward appearance, the doctrine is actually quite complicated.  Three very specific requirements have to be met for it to apply:

  1. the accident which harmed the plaintiff had to have been caused by something that was in the defendant’s possession or control;
  2. the accident itself has to be one that normally does not occur without some kind of negligence; and
  3. the defendant has to be in a better position than the plaintiff to determine what actually happened and if there was negligence involved.

Several months into the case, the hospital’s lawyers hired several expert witnesses including physicians, nurses and hospital administrators to testify that nothing negligent could have happened to the plaintiff during his admission to the hospital that caused his back injury.  The hospital even filed a motion to win the case on grounds that the plaintiff could not prove his case under the doctrine of res ipsa loquitur.

Cooper Sevillano disagreed and filed an objection to the hospital’s motion.  In support of their position, Cooper Sevillano hired their own expert radiologist to testify that the compression fracture was most likely to have occurred some time between the plaintiff’s admission to the hospital and when it first became apparent on the X-ray film the day after the surgery.  Cooper Sevillano also retained the plaintiff’s treating orthopaedic surgeon to testify about his conclusions that the fracture was traumatic in nature and was new as opposed to old.  Cooper Sevillano and the hospital’s attorneys then appeared before the Judge and argued their respective positions.

Following that argument, the court issued a decision in favor of Cooper Sevillano’s client stating that “a resulting compression fracture of the lumbar spine after a procedure which did not involve that area of the body is the type of injury that would not have occurred unless someone had been negligent”.

Prior to trial, Cooper Sevillano and the hospital’s attorneys reached a confidential settlement agreement whereby the hospital agreed to pay the plaintiff a sum of money in exchange for his promise to discontinue his lawsuit.

January 2014: Acupuncture Medical Malpractice

by wpadmin on January 7, 2014

Acupuncture Causes Collapsed Lung

Acupuncture is a form of alternative medicine that involves piercing the skin with thin, solid, metallic needles that are manipulated by the hands of qualified healthcare professionals.

In Connecticut, “qualified” means an acupuncturist must either have successfully completed 60 hours of postsecondary schooling at an accredited institution, or have successfully completed an ACAOM certified course in acupuncture with a minimum of 1,350 hours of training, at least 500 of which must be hands-on.

The actual needles that are used in acupuncture are regulated by the U.S. Food and Drug Administration (FDA).The FDA requires that the needles be sterile, nontoxic and labeled for single use by qualified practitioners only.

acupuncture medical malpractice

Generally, acupuncture is considered a safe form of treatment. It is widely used to treat many different conditions and to relieve all types of pain, such as low back pain, shingles, nerve pain, hand pain, knee pain, headaches, fibromyalgia and menstrual pain. The FDA has received relatively few complications from its application, especially in light of the millions of people who receive acupuncture treatment each year (and the staggering numbers of onetime needles that are used).

The most widely recognized complications of acupuncture are infections (from unsterilized needles) and punctured organs (from careless needling techniques or unfamiliarity with the human anatomy).

Cooper Sevillano’s review of complications reported in medical journals found that the most serious problem with accidental insertion of a needle into the pleural space between the lungs and the chest wall. This fact alone makes what happened to Cooper Sevillano’s middle-aged female client, who began to experience severe chest pain and shortness of breath immediately after her acupuncture treatment to her upper back, that much more puzzling.

For years, the plaintiff struggled with upper and lower back pain, due in large part to her past occupation as a hairdresser.  In 2010, she was referred by her primary physician to an acupuncturist for pain relief. On her first visit with the acupuncturist, she complained about neck pain and stiffness and upper, mid and lower back pain. The acupuncturist conducted a physical exam and diagnosed the plaintiff with myofascial pain syndrome with thoracic segmental dysfunction. In hopes of relieving her muscles spasms and reduce her pain levels, the acupuncturist decided to place several needles in different areas of the plaintiff’s upper back while she lie face down on an examination table.

Over the course of the next two weeks, the plaintiff had this exact same treatment done a total of 4 more times. On the fifth visit, the plaintiff received the identical treatment. In acupuncture speak, that included needling at the location of the 3rd intercostal space in the upper portion of the back over the lung apex. When performing acupuncture to this area, the standard of care prohibits deep vertical placement of the needle because the lungs are located directly underneath and lie relatively close to the surface of the skin. Immediately after the treatment session was over, the plaintiff started to feel severe right-sided chest pain. It felt like she was having a heart attack. Her body squeezed up and she struggled for air.

In response, the acupuncturist had her lie down in an examination room with ice packs on her chest. He told her she was simply having muscles spasms. He told her to go home and take Tylenol.

By the next morning, the plaintiff was having excruciating pain in the right side of her ribcage like someone was squeezing her ribs. She developed a dry cough and a lump at the base of her throat. She was having difficulty breathing. She recalls feeling like someone was sitting on her chest. Feeling that something was not right, the plaintiff called the acupuncturist’s office and had a conversation with the receptionist. When the plaintiff explained her symptoms of not feeling like she could breath and feeling like she was having a heart attack, the receptionist told her she should go get a chest X-ray. The plaintiff then called her primary doctor and within hours she was seen for X-rays of her chest.

When the radiologist placed the images up on the board, he could see a 25% right-sided pneumothorax to the level of the plaintiff’s fourth rib with noticeable atelectatic changes at the base of the right lung. In other words, the acupuncturist had pierced the plaintiff’s right lung with the tip of the thin metallic needle he placed into her 3rd intercostal space and collapsed her lung. By the time of the X-ray almost 24 hours after the treatment, the plaintiff was found to have a 25% pneumothorax, meaning that there was a collection of approximately 25% of air in the cavity between the lungs and chest wall (pleural space) resulting in collapse of the right lung.

Over time, the plaintiff recovered from her condition and resumed all of her previous activities. Nevertheless, something about what happened to her continued to gnaw at her. While she could almost accept the fact that the acupuncturist basically assaulted her with the needle, what she could not accept was the fact that he did absolutely nothing about it and was completely ignorant to the fact that it had occurred in the first place.

The plaintiff hired Cooper Sevillano to determine her legal rights. She knew she had been wronged, but she was also told that she did not have a viable case because she was not permanently damaged from her collapsed lung. Cooper Sevillano explained to the plaintiff that the acupuncturist owed her compensation to make up for the economic as well as the physical and emotional harm he caused her by puncturing her lung. Cooper Sevillano recently settled the case against the acupuncturist at mediation for a confidential sum of money.

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