She was a young woman.

With two young children.

She went for a routine gyn visit.

During her gyn visit, her gynecologist did a routine Pap smear.

Two weeks later, the gynecologist calls her and tells her the pap smear was abnormal.

He tells her she has cancer. He tells her she has advancing cancer of the uterus.

He tells her she needs a hysterectomy.

Now, not later.

He tells her that "You want to be around for your children as they get older, don't you?"

Her response is typical..."Of course I do. Ok. Do whatever you have to do."

She agrees to have a hysterectomy within the next 2 weeks.

What did she know?

She trusted her gynecologist.

She believed him.

She had no reason not to believe him.

He knew what he was talking about.

He was definitive about her cancer.

He said she'd die within a year if she didn't have the hysterectomy now.

So what did she do?

She had the hysterectomy.

The doctor does the surgery.

He removes her uterus. He sends the uterus to pathology for evaluation.

She doesn't get the pathology results for two weeks, until she returns for a post-operative visit at her doctor's office.

Her doctor is thrilled.

He tells her she's cancer-free now. He then let's slip something she didn't fully comprehend.

The pathology showed the cancer really wasn't as bad as originally thought. "But let's not dwell on the past. The good thing is that you have no more cancer."

"What do you mean it wasn't as bad as you thought?"

Her gynecologist kept making excuses. He never explained the difference between what he told her before the surgery and what pathology showed after the surgery.

The patient decides to get a copy of her own records. She came to me with questions she needed answered.

"I have my medical records from my gynecologist. Can you look at them and tell me what they say?"

The records were actually straightforward.

The problem was that his treatment plan made absolutely no sense.

The original pap smear results showed slight atypia. This is not cancer.

It might be precancerous but it's definitely not cancer and not invasive cancer.

My gynecology expert confirmed that the only treatment that she needed in light of her abnormal pap smear was a biopsy. The only biopsy she needed was called a cone biopsy.

Had this been done, the results would have clearly shown that she had no cancer whatsoever.

Had this cone biopsy been done, there would have been no need to remove this patient's uterus.

When I spoke to her, she told me she just wanted to have two more children.

When I asked her why the doctor told her she had to have a hysterectomy, she told me that she trusted her gynecologist.

He was smart. He was educated. He had gone to medical school and had done his post graduate training at a well-respected hospital in New York City. She had no reason not to believe him. She never even thought to get a second opinion.

When I had an opportunity to question this gynecoogist at his deposition, which is pretrial testimony, he was defiant and felt he did everything correctly and within the standard of care.

He did not believe a cone biopsy was necessary.

According to his interpretation of this patient's Pap smear, it constituted a form of invasive cancer that required a hysterectomy.

Importantly, he could not justify his actions based upon any known medical literature or medical textbooks. He simply based his opinion upon his clinical knowledge and interpretation.

The fact was, that he was wrong.

He was wrong because he failed to follow the American College of obstetrics and gynecology guidelines.

He was wrong, because he incorrectly interpreted her Pap smear.

He was wrong, because he recommended an invasive surgical procedure when in fact this woman never had any cancer at all.

You would think that during this medical malpractice case the defense would have obtained their own expert early in the case. Not true. Instead, they pushed this matter to trial. Only then did they notify me they had retained a board certified gynecology “expert” to testify against us.

Their expert was going to support the gynecologist's version of why it was necessary to hysterectomy. At least, that's what the defense attorney said in his papers that notified me they had retained a medical expert to testify.

This was a remarkably poor strategy on their part. They thought they were simply going to parrot what the gynecologist said as justifying why he performed his hysterectomy.

Our expert was confident.

Our expert had plenty of medical literature that supported our claim that this gynecologist violated the basic standards of medical care.

The defense disagreed.

They forced us to trial. In the Bronx. Across the street from Yankee Stadium. That's where the New York State Bronx Supreme court is located.

They forced us to pick a jury.

After jury selection was finished, we were then assigned to a trial judge who handled these medical malpractice cases.

They forced us to put on our witnesses.

We made opening remarks. 

As my first witness, I called the gynecologist who performed this unnecessary hysterectomy.

He was defiant. Again, he could not explain how his actions were not supported by any medical literature or medical journals. He looked foolish. His explanations made no sense.

The defense apparently didn't care.

My client testified.

She testified about what the gynecologist said to her. She cried when she told the jury that the doctor told her she'd be dead within a year if she didn't have this hysterectomy immediately.

I brought in my gynecology expert to testify.

He made a good witness. He was confident.

He showed the jury how this patient simply needed a cone biopsy which would have shown she had absolutely no cancer whatsoever.

He explained, quite clearly that this patient never should have had a hysterectomy.

The defense attorney, during cross-examination asked our gynecology expert whether his client's actions were medical judgments. The reason he asked this is that if this was a medical judgment call, his client would be justified in making the recommendation that he did.

If his client had made a judgment call that was within the accepted medical standards, the mere fact that he chose a less popular alternative might still be acceptable even though the majority of other gynecologists would not have offered that option.

It was my medical expert's conclusion that under no circumstance was this a judgment call.

Instead, this was clear-cut. Any doctor would know that you don't simply rely on a single Pap smear's abnormal finding to conclude that the patient has invasive uterine cancer.

After we put on all of our witnesses to show that we were more likely right and wrong that what we've are claiming was true, we rested our case. "Your honor, the plaintiff rests," I said.

The defense attorney asked the judge for a brief recess before they began putting on their own witnesses.

During his brief recess the defense attorney approached me for the very first time and offered to begin negotiating to try to settle this case.

This brief recess turned out to be a settlement negotiation session where we were ultimately able to successfully settle this case before the defense started putting on their witnesses at trial.

An interesting observation:

At no time during the settlement negotiation did defense turn around and say “Okay, we recognize that our doctor screwed up.” At no time did the defense acknowledge that what their doctor did was a violation of basic standards of medical care.

Instead, the defense turned around and said "Listen, we recognize there is a risk of completing this trial and having a jury return a verdict far in excess of this gynecologist's medical malpractice insurance policy."

Remember where we were.

We were in Bronx County Supreme Court.

My client was very likable and sympathetic.

The doctor was harsh and defiant. We had a sense that the jury did not truly appreciate this gynecologist's demeanor when I questioned him earlier in the trial.

It was that risk of what the jury would likely do that prompted the defense to begin settlement negotiations.

The reality is that my client, a lovely young woman with two beautiful little girls lost the opportunity to have more children.

She was made to believe that she had invasive cancer and if she did not have this surgery to remove her uterus, she would be dead within a year and her little girls would be without a mother.

If you were in that situation, and someone offered you a significant sum of money to have your uterus removed, would you do it when you still wanted to have additional children?

Of course you wouldn't. Nor would you want the burden of worrying what would happen to your two young children if you were no longer around because you chose not to have the surgery.

To learn about a case I handled where a doctor forged his medical records, I invite you watch the video below...

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer