Malpractice defense: Left Ureter Kinked During Hysterectomy

In addition to my consulting work and writing the Health Business Blog, I’m chairman of the board of Advanced Practice Strategies (APS), a medical risk management firm that provides litigation support for malpractice defense and an eLearning curriculum focused on enhancing patient safety.To learn more contact: Timothy Croke, Director of Demonstrative Evidence Group. tcroke@aps-web.com or 617-357-0553 ext. 6664.Here’s the Advanced Practice Strategies case of the month.Judgment for the DefenseLeft Ureter Kinked During HysterectomyThe plaintiff underwent a hysterectomy, followed by a Burch colposuspension (sutures placed under bladder for support to help control urinary incontinence).   The hysterectomy was performed by an OBGYN physician with a urologist present to assist with the Burch procedure.  Both procedures were completed without intraoperative complications, and the patient was moved to the recovery room.  Postoperatively,  a kink in the patient’s left ureter, caused by a suture placed during the hysterectomy procedure, was discovered.  As soon as this became apparent, the OBGYN physician and the defendant urologist returned the patient to the operating room, where they dissected out and reimplanted the remaining, undamaged ureter into the bladder, thus allowing the system to function normally.  The patient did not suffer any long-term complications.PLAINTIFF'S CLAIM: Originally both the OBGYN physician and the urologist were named in the case, but the OBGYN physician was later dismissed.  The plaintiff believed the urologist, as a physician who specializes in surgeries involving the urinary system, was primarily responsible for safeguarding the integrity of the ureters.  She argued that the urologist, while acting as  assistant to the OBGYN physician during the hysterectomy procedure, should have dissected out the ureters to make sure they were clearly visible and out of harm’s way, thus preventing the errant suture from kinking the ureter.DEFENSE'S ARGUMENT:During a hysterectomy procedure, a ureteral dissection is not routinely performed unless concern arises about a potential or actual injury to a ureter.  Dissection presents significant risk, since the ureters course under the peritoneum and through a highly vascularized region that can easily be injured, resulting in major bleeding.  The defendant assisted with the hysterectomy procedure by holding retractors to expose the surgical site while the OBGYN physician placed sutures to close the vaginal cuff and control nearby bleeding; it was these sutures that led to the ureteral injury. The defendant argued that only by placing the sutures himself could he have been aware of their depth, since this determination depends on the operating surgeon’s feel during the procedure.___________________________________________________________________VISUAL STRATEGY:Collaborating with the defendant and his attorney via web meetings, phone calls, and emails, APS created visual aids illustrating the surgical procedures and the defendant’s part in those procedures.We began with an illustration of the normal anatomy of the arteries and veins of the female reproductive system to show the ureters’ path under the peritoneum and their relationship to the many blood vessels nearby.The next diagram of a superior view of the female pelvis was used to orient the jury to the surgeon's view of this anatomy during the procedure. The ureters were printed separately on a clear overlay, emphasizing that their course below the peritoneum was not visible during the surgery.A view of the orientation of the surgical field and the surgical view of female pelvis were used to illustrate what was visible to the surgeons; the ureters were again printed separately on a clear overlay, indicating their invisibility during the course of the surgery.The next two boards were key elements in the defense.  The first showed the surgeon’s view during the hysterectomy and, specifically, the suturing of the vaginal cuff.  The second illustrated the defendant’s view during the hysterectomy and suturing.  These boards reinforced the defendant’s argument that, as the surgical assistant, he did not have a direct view from his position on the left side of the patient of the OBGYN physician suturing the vaginal cuff.   This second board revealed quite strongly that the only person who could really know the depth of the sutures placed to control bleeding around the left side of the cuff was the surgeon who actually placed them.Another board showed the suturing of the bleeders around the vaginal cuff.The Burch colposuspension illustrated on another board allowed the jury to see the location of the defendant’s part of the operation, far from the site of the ureteral injury.Two last boards illustrated the anatomy in a parasagittal view, both before and after the hysterectomy procedure.  These views helped the defendant’s attorney to reinforce the close proximity of the vasculature to the ureter and that the ureter was hidden and not plainly visible to the urologist.This series of illustrations helped the defense successfully convey the following key points to the jury:

• The hysterectomy was done correctly and followed the standard of care.
• The defendant urologist was not directly involved in suturing the vaginal cuff during the hysterectomy procedure; he only served as an assistant while the OBGYN physician performed the procedure.
• Dissection of the ureters can pose significant risks because of their close proximity to the vasculature, and it is thus not performed during a hysterectomy unless necessary.
• Although its occurrence in this case was unfortunate, the kinked ureter was recognized and corrected promptly and appropriately.

RESULT:The jury found in favor of the defense. "I wanted you to know your illustrations in this case were outstanding. The jury foreman said they were very helpful in understanding the issues." —Attorney, Doug Durfee , Saurbier & Siegan, P.C., St. Clair Shores, MI