Defense Verdict in New York County

In On January 17, 2013, Karen T. Grottalio obtained a defense verdict in New York County Supreme Court on behalf of a prominent colon and rectal surgeon who practiced at a major metropolitan medical center.

Plaintiff, a 46-year-old single female, alleged that as a result of negligent surgical treatment by defendant, she suffered serious personal injuries including a rectovaginal fistula for which she underwent three failed surgical repairs and suffered multiple and extensive complications.  These included a colostomy, ileostomy, hernia, colon resection, internal bleeding, abscess and extensive scarring over the course of three years.

Plaintiff underwent a transanal excision of a pre-cancerous rectal lesion, or adenoma, which was on the anterior side of the rectum, adjacent to the vagina.  Plaintiff claimed that during this procedure, the defendant physician failed to ensure that the vagina was not perforated by peforming a simple “finger test.”

Ms. Grottalio argued that the finger test was not indicated in the defendant’s reasonable judgment because she had full visualization of the surgical field and was able to determine by feel and by visualization that no suture or perforation occurred.  She also argued that the vaginal finger test carried a low risk of introducing bacteria in the vagina which could cause either a bladder infection or a urinary tract infection in the patient.  Ms. Grottalio also argued that it was unlikely that palpation of the vagina would have allowed the physician to detect a tiny perforation hole or a single suture.  She also argued that a retovaginal fistula can occur days after surgery (due to infection, hematoma or delayed thermal injury from the electrocautery used during the surgery)
and not necessarily as a result of surgical malpractice.  Although plaintiff testified about her symptoms immediately after the surgery, these complaints were not communicated to the physician or documented until days later, perhaps evidencing faulty memory by a very sympathetic and likable plaintiff.

The jury returned a unanimous verdict in favor of HPM&B’s client.