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Konway v. Jordan3/1/2002
UNPUBLISHED
Before: O'Connell, P.J., and White and Cooper, JJ.
Plaintiffs appeal as of right the judgment of no cause of action entered following an eight-day jury trial in this medical malpractice action. We affirm.
Marlene Konway (plaintiff) had an emergency Cesarean section (C-section) at defendant hospital, performed by defendant Dr. Mary Jordan, D.O. (defendant). Plaintiff's theory of the case, presented through three expert witnesses, was that Dr. Jordan negligently performed the post-delivery closure of plaintiff's uterus by a) stitching the posterior portion of the uterus to the two anterior edges of the delivery incision, or b) sewing one anterior portion of the incision to the posterior uterine wall, and that as a result (of either), plaintiff's uterine walls adhered together. There is no dispute that plaintiff developed Asherman's Syndrome, defined basically as traumatic amenorrhea, meaning no menstruation due to injury and closure of the neck of the womb. There is no dispute that plaintiff's case of Asherman's was severe, and that as a result she ceased menstruating and is unable to bear more children.
Both parties' experts testified that Asherman's Syndrome is very uncommon, and involves intrauterine scarring/adhesions of traumatic origin. The experts agreed that Asherman's syndrome can be from mild to severe, and that in some moderate cases, women continue menstruating. The experts agreed on little else, and trial was, indeed, a battle of the experts.
Plaintiff's experts testified that they had never seen or heard of a patient developing Asherman's syndrome simply from having a C-section alone, and maintained that Asherman's usually arises from vigorous post-partum or post-abortal curettage, meaning the scraping of the lining of the uterus. Plaintiff maintained that no such vigorous curettage occurred in this case. Plaintiff maintained that in the absence of trauma to the uterus, Asherman's is only known in cases involving tuberculosis of the uterus, which plaintiff did not have.
Defendant's theory of the case was that Dr. Jordan was not negligent, and that plaintiff's development of Asherman's Syndrome resulted from the trauma of the C-section itself, in combination with chorioamnionitis, a sub-clinical infection of the chorion and amnion (parts of the placenta), that was first noted in the placenta pathology report.
Plaintiff's experts, all of whom were board-certified in obstetrics and gynecology, testified that the type of sub-clinical infection plaintiff had was extremely common and minor, that development of Asherman's Syndrome under such circumstances was not a complication that would occur in the course of an ordinary C-section, and that the incision made is not the kind of trauma capable of causing Asherman's, even in the presence of subclinical infection.
Plaintiff's experts, Drs. Michael Berke, Ronald Zack and Bernard Nathanson, testified that two objective factors demonstrated, in the absence of other trauma or instrumentation, that defendant Jordan had improperly sewn the anterior and posterior walls of plaintiff's uterus together: first, during the days following plaintiff's delivery she had scant bleeding or lochia, which is uncommon and consistent with one segment of the uterine incision being left open. Bleeding normally persists for two to four weeks after such a delivery, initially being heavy and decreasing with passing weeks.
Second, three weeks after delivery (on May 31, 1995) plaintiff passed a large piece of necrotic tissue vaginally, measuring 5 ¼" x 1 ¼" x ½", which was sent for pathological examination. The pathology report revealed that it contained s
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