A hysterectomy apparently left a patient incontinent; a urologist who did the subsequent repair got caught up in litigation.


Dr. U, age 48, an experienced urologist, does both endoscopic and open abdominal surgery. As his experience accumulated, his reputation for “fixing the hard cases” grew, and referrals flowed his way. One of them he wished he had never accepted.

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The patient was a 47-year-old woman who, at the recommendation of her ob/gyn, underwent a complete abdominal hysterectomy at a community hospital. She appeared to make a normal recovery, but after two weeks she reported a “leakage” that caused her, once again, to wear a pad. Without doing a careful examination, her ob/gyn took a urine culture and started the patient on antibiotics, which seemed to make no difference after one week. At two weeks, a urinary culture was negative. At this point, the specialist changed his working diagnosis to “irritable bladder” and started the patient on anti-spasmodic medications. But the woman continued to leak urine. At this point, the gynecologist finally examined her more carefully, and he noted that the urine seemed to be coming from behind the urethral orifice. Not sure what to make of this, he referred the patient to Dr. U.


The urologist saw the patient several days later, and ordered a series of tests, including a cystourethrogram, which demonstrated a vesico-vaginal fistula, through which urine (and dye) were leaking into the vagina. A month later, Dr. U repaired the fistula, and postoperatively had the patient carry a urinary catheter for two more weeks for the repair to heal. He thus prescribed hourly voiding to prevent stress on the repair. After a graded approach to full continence, the repair proved successful, though the patient still had occasional bouts of UTI and low-level bladder irritability.


Dissatisfied with the hysterectomy, the woman consulted a plaintiff lawyer. He had the charts examined by two experts, a gynecologist and a urologist. Both criticized the patient’s management, and the lawyer filed suit against the gynecologist. First, however, he called Dr. U several times to see if he would testify against the gynecologist, and to inquire how much he would charge for his testimony. Up to $5,000 would not be a problem, he implied, and might even circumvent a lawsuit against Dr. U himself. Dr. U replied: “I’ll testify if I’m named

as a fact witness, but won’t serve as an expert witness.” The lawyer hung up with the comment, “You may change your mind. Call me.”


Before the deposition, held in Dr. U’s office, the lawyer visited once again with Dr. U, presenting himself as “his patient’s lawyer,” and asked him once again to testify as an expert, or “at least support his patient in her claim for damages” in his testimony. Dr. U nodded noncommitally, and proceeded to testify as objectively as he could, dodging questions relating to the “standard of care.” He described his management of the problem but declined to testify that “it was more probable than not that the vesico-vaginal fistula was proximately caused by a negligent act.” He took pains to present a balanced and detached viewpoint but not take sides. The plaintiff lawyer seemed pleased, in that he could now tell the jury that the subsequent treating physician had identified the fistula as “probably developing as a complication of the hysterectomy surgery,” while the defense lawyer seemed relieved that Dr. U was cooperative.


About a week before trial, Dr. U received a call from the plaintiff lawyer. “I’ve designated you as a witness,” he began. “You’ll be receiving a subpoena to appear and testify.” Sure enough, the next day a process server handed Dr. U the subpoena, which required his presence at 9 am the next Monday, one of his busiest days. At the county courthouse, he soon found himself on the stand. He again took a neutral stance, describing the surgical pathology and the steps he took to correct it. He declined to assign blame or identify “substandard care,” but did state that, in his opinion, the fistula was probably caused as a complication of the hysterectomy. The case went to trial, and, after deliberation, the jury found in favor of the gynecologist.


Legal background 

Courts have tremendous power over our daily lives, and lawyers, as “officers of the court,” can legally issue all sorts of orders. The problem facing the recipient is to realize that, in fact, many

of these are a form of legal bluffing, and are merely intended to get your attention, as well as make the point that lawyers in our society have disproportionate power over others. Office staff can handle some requests for medical records, but subpoenas and other legal documents should be treated cautiously. Prudent physicians should seek legal advice from an independent party, either a friendly lawyer, the state medical society, or their malpractice insurance company.  

Risk management

The role of the subsequent treating physician is an uncomfortable one under any circumstances, and more so when malpractice litigation strikes. The jury sees the subsequent treating physician as an independent source of information and opinion, one who knows the case intimately. As a result, both sides seek to have the subsequent treating physician on their side during malpractice proceedings, or at least in a neutral corner.


Often, the plaintiff lawyer will contact the doctor, asking if he will testify on behalf of the patient, and sometimes implying that cooperating will “save him some trouble,” meaning either legal harassment or inclusion in the lawsuit. The physician then has to determine whether the lawyer is bluffing, which he generally is, and then decide how to proceed.


The most appropriate stance for the subsequent treating physician, and the one that Dr. U took, is to concentrate on the facts of the case that you are able to observe directly, and give those opinions that are medically apparent from those facts, without elaboration. This is an honest, restrained and professional approach likely to annoy the lawyers on both sides equally, thus indicating its validity.