Ann Arbor woman's malpractice verdict is affirmed by Court of Appeals

After Amy Garcia's pregnancy resulted in fetal demise, her O.B. Gyn scheduled surgery to dilate her cervix and remove the baby.  During that surgery, the doctors tore her uterus and mistakenly removed bowel tissue instead of fetal remains.  She had to undergo emergency surgery to repair her bowel and rectum.  She continues to experience bowel difficulties and has required additional surgery.  She sued Norman Gove, MD, Romina Dunham, DO, a first-time resident assisting Gove, and Trinity Health Michigan.  She won a verdict.  The doctors appealed, arguing that the verdict wasn't fair.

The Court summarized a wealth of expert testimony offered by both parties.  In essence, the Plaintiff's multiple experts stated that the event could not have happened without negligence, that it was not a "normal complication" of a  "D and C" or "D and E" procedure, that Gove should have more carefully supervised the inexperienced resident's work, and that the standard of care required that he evaluate her work, either digitallly or by ultrasound, prior to mistakenly extracting bowel and rectal tissue.  The Defendants' experts argued that while the Plaintiff's experts were not mistaken in their general allegations, the standard of care did not require the O.B.Gyns to take the steps suggested.  The Defendants' experts suggested that this was simply a "known complication" of a "D and C" or "D and E" procedure.

Consistent with the Court Rules, the Plaintiff requested an instruction allowing the jury to conclude--if they believed Plaintiff's experts--that the injury to Garcia could not happen without negligence by the physicians.  The Defendants argued that this instruction should only be give where all experts agree that an event must be caused by negligence.  Defendant Gove also argued that since Dunham, the resident, inserted the dilators, he did not have "exclusive control" of the injury-causing mechanism.  The Court pointed out, however, that all experts agreed that Gove had exclusive control of the injury causing mechanism, the ring forceps.

Incredibly, the Defendants also argued that the applicable proof doctrine, called res ipsa loquitur, should not be applicable to this situation because the explanation of the event was not "more readily accessible to the Defendant," than to the Plaintiff.   The reviewing court made short work of this argument, pointing out that Garcia was unconscious at the time, Defendants controlled and conducted the surgery, and Garcia's only access to the event was through her experts' interpretation of the medical records composed and recorded by the Defendant.  In fact, this operative report was described by the Court as "not detailed, not in sequential order, very brief and confusing."  While Gove argued the resident performed the entire procedure, the resident denied that she did.  The court concluded that this is precisely the situation that the doctrine of res ipsa loquitur was designed to address. 

The reviewing court pointed out that even the Defendants' experts' testimony did not support the defendants' claim that removal of bowel and rectal tissue is a normal complication of a dilation and curretage or extraction.  There was ample medical evidence to support a resasonable juror's conclusion that this event was caused by negligence--whether Plaintiff could explain precisely how it happened or not. The verdict was unanimously affirmed by the higher court.

Cases like this one explain why Michigan has low pay-outs for medical malpractice victims but very high defense costs.