VOL. CXCVI – NO. 13 - INDEX 868 JUNE 29, 2009 An incisivemedia publication Medical Malpractice

known as a sound, which is introduced Gynecological Malpractice Claims through the cervical opening to the fun- dus of the uterus. The gynecologist gently Knowledge of female anatomy and medicine is a necessity for success advances the sound until it hits the back wall of the uterus and meets with resis- By Timothy L. Barnes and ing area of the law, we highlight here two tance. The sound is graded to indicate William A. Krais gynecologic procedures that often lead to the depth of the canal in centimeters. litigation: dilation and curettage and Pap Resistance usually is felt at about eight to gynecologist’s negligence can have smear. ten cm. The gynecologist then knows not a profound and lasting impact on a to introduce other instruments to a greater Apatient. Such negligence can result Dilation and Curettage depth. in injury to a woman’s reproductive and Once the physician knows the posi- surrounding organs, leading to infertility, A dilation and curettage, or D&C, tion and depth of the cavity, he or she typi- impaired bladder or bowel function, or a is a minor procedure to scrape and col- cally introduces a polyp forceps, careful variety of other devastating injuries. The lect endometrial tissue from inside the not to go beyond the depth of the sound- physical and emotional toll of these inju- uterus. The tissue is sent to a pathologist ing instrument. In the case of a polyp, the ries to a patient is, naturally, significant who determines whether it is cancerous gynecologist grasps the tissue with the and often permanent. or otherwise abnormal. A D&C usually is forceps and then uses a twisting motion to Given the medical complexities indicated to address dysfunctional uterine remove the tissue from the uterine wall. associated with such cases, an attorney bleeding or to remove a fibroid tumor, Occasionally, this effort to remove handling these claims must be familiar polyp, or other suspicious growth. tissue from the uterine wall can result in a with the female anatomy, understand the Dilation is the expansion of the cervix perforation or tear to the uterus and lead to medicine and appreciate how the medi- (the lower part of the uterus that opens potential litigation. Another area for pos- cal procedures are performed. A close into the vagina) to allow the passage of sible litigation is whether the physician working relationship with one’s experts instruments into the uterus. Curettage was negligent in failing to recognize the is often critical to the success of complex involves the scraping and collecting of perforation. malpractice cases such as these. contents from the uterine cavity (endo- Many gynecologists do not believe In addition, because gynecological metrium) with a surgical instrument for that a perforation that occurs in this fash- malpractice cases often involve multiple pathological review. Visualization of the ion is a deviation from appropriate stan- experts, litigating them can be expensive uterine cavity by hysteroscopy before and dards of medical care. Instead, such an and time-consuming. While the costs and after the procedure helps the gynecolo- outcome can be the result of a thinner- commitment to prosecute these claims gist determine whether the procedure was than-expected uterine wall or a distorted surely is extensive, a successful outcome performed appropriately and whether the uterine architecture that can be prone to a can result in a significant award for the endometrium was treated successfully. tear or perforation. client. When performing a D&C, the gyne- While simply perforating the uterus As an introduction to this challeng- cologist first examines the pelvis to evalu- during a D&C may be a known and ate the position of the uterus. Next, the accepted risk of the procedure, and not Barnes and Krais are members of gynecologist dilates the cervical canal malpractice, the physician’s failure to the personal client services practice with instruments that are progressively recognize the perforation may be malprac- group of Porzio, Bromberg & Newman in larger. The gynecologist then measures tice. In fact, it is critically important for Morristown. uterine depth with a blunt instrument the gynecologist to recognize any uterine

Reprinted with permission from the JUNE 29, 2009 edition of New Jersey Law Journal. © 2009 Incisive Media US Properties, LLC. All rights reserved. Further duplication without permission is prohibited. 2 NEW JERSEY LAW JOURNAL, JUNE 29, 2009 196 N.J.L.J.868 perforation and appropriately monitor the lab for evaluation by a pathologist. may be as simple as a repeat Pap test. patient post-operatively. Perforations are Attorneys handling such cases also However, it may also include a colposcopy most often seen during a post-operative must be aware of the progression of cel- with directed biopsy where, under magni- inspection of the uterus via hysteroscopy. lular changes from pre-invasive to cancer- fication, the physician removes tissue and In addition, a perforation that is very ous. Most cervical cancers begin in the sends it to the lab for analysis. Further severe as to damage organs beyond the transformation zone, where the ectocervix treatment includes a loop electrosurgical uterus may suggest a deviation from the and endocervix meet. These cancers do excision procedure, or LEEP, during which standard of care. If a gynecologist inserts not start abruptly but instead develop an electrical current is used to remove an instrument so that it perforates the uter- and progress slowly from precancerous to abnormal cervical tissue. A cone biopsy, ine wall and continues into the peritoneum, squamous cell cancer. Because squamous during which a wedge of the cervix is the gynecologist can injure not only sur- cells cover the endocervix, squamous cell removed, may also be used. Other thera- rounding organs, such as the bladder and cancers comprise 80-90 percent of all pies include cryotherapy, which involves bowel, but also neighboring blood vessels cervical cancers, and usually arise in the freezing abnormal tissue, and laser ther- with potentially disastrous consequences. transformation zone. The remaining 10-20 apy, which involves destroying abnormal A perforated bowel, for example, may percent of cervical cancers are adenocarci- tissue with a laser. lead to sepsis, and the patient may require noma and begin in the mucous-producing The medical-legal implications of another surgery to remove and repair the glands of the endocervix. cases involving Pap smears generally injured portion of the bowel. Frequently, Currently, the American Cancer relate to the delayed diagnosis of cervi- such patients require at least a temporary Society recommends that all women cal cancer. This may occur, for example, colostomy to divert fecal material from undergo cervical cancer screening within when a lab makes an error in interpreting the healing bowel. A thorough review of three years of the onset of sexual rela- or reporting the results of the Pap test, the surgical pathology report may offer tions, but no later than age 21. After initial causing the gynecologist to rely on a false clues as to whether the gynecologist not screening, typically Pap tests should be negative report. In those cases, a patient only removed uterine tissue, but tissue repeated annually. For women over 30 may have a precancerous condition that from surrounding organs. Again, in these who have had three consecutive negative could be treated easily. Instead of under- cases the gynecologist must recognize and test results, the Pap test may be repeated going appropriate treatment or follow-up, address the unintended outcome before the every two to three years. the patient may not be seen until the next patient’s condition deteriorates. The human papilloma virus (HPV) is regularly scheduled Pap test a year or two recognized as the most significant risk fac- later. By then, the condition may have Pap Smears tor for developing cervical cancer. HPV is progressed from precancerous to cancer- a group of many viruses that is passed usu- ous, requiring more invasive treatment and While negligence during a D&C can ally by sexual contact. While often benign, diminishing the patient’s prognosis. result in injury to the uterus and possibly two of the viruses are associated with a The same scenario occurs when the surrounding organs, negligence associated high risk for developing cervical cancer. gynecologist fails to follow up on a prop- with a Pap smear may result in the delayed The Pap test detects changes in cervical erly interpreted and reported abnormal diagnosis of cervical cancer, potentially cells that are caused by HPV. Pap test. Instead of instituting appropriate depriving the patient of an opportunity for Most labs use the “Bethesda system” treatment, the physician delays, during an earlier diagnosis and treatment when for describing a Pap test result. Those which time the patient’s condition progres- the prognosis is best. descriptions range from the benign, e.g., sively worsens. Again, when the diagnosis A Pap smear, or cervical cytology Atypical Squamous Cells of Undetermined is made perhaps years later, the treatment screening, is a test done to detect the pres- Significance (ASCUS), which typically sig- will be more invasive and the prognosis ence of a malignant or a premalignant nifies HPV, to the more insidious, includ- worse. lesion in the ectocervix. As with D&C ing Low-grade Squamous Intraepithelial cases, knowledge of the female anatomy is Lesions (LSIL), which encompasses mild Conclusion crucial to the successful handling of these dysplasia, or abnormal cell growth, and cases. The cervix is the lower portion of High-grade Squamous Intraepithelial Gynecological malpractice cases the uterus. When performing a Pap smear, Lesions (HSIL), which includes moder- require not only significant legal experi- which usually is part of a pelvic exam, the ate and severe dysplasia and carcinoma in ence, but also knowledge of the anatomy physician scrapes cells from the ectocervix situ. and medicine. This knowledge, supported (outside) and swabs cells from the endo- The type of follow-up necessary for by well-founded expert opinions, should cervix (inside). Those cells are placed on an abnormal Pap smear depends largely provide the basis for a successful litiga- a slide and in a solution and then sent to a on the degree of abnormality. Follow-up tion. ■