Terry D. Horner recently won a dismissal for an OB-GYN physician and her group medical practice in a case involving a 47-year-old woman who presented to the emergency department of an Orange County, NY hospital following a Sunday afternoon boating accident in which she lost her balance, fell onto a metal cleat and sustained a puncture wound to her perineal region, close to her vagina.
Feldman, Kleidman, Collins & Sappe LLP’s (FKC&S) client was the OB-GYN physician on call for the hospital that day. She was contacted by the emergency department (ED) physician on duty because of the apparent location of the wound which was, in addition, difficult to see because of profuse bleeding. In the meantime, the patient was given IV clindamycin, an antibiotic and Toradol, a pain medication, both ordered by the ED physician.
FKC&S’s client visually evaluated the wound, determined that surgery was necessary and admitted the patient to the hospital. Under general anesthesia, FKC&S’s client inspected, cleaned and stitched the wounds—a 10 cm long, deep gluteal laceration and a smaller 3 cm laceration.
The patient stayed overnight in the hospital and received two additional doses of IV clindamycin. She was discharged the next morning, on Monday.
On Friday, after business hours, the patient called FKC&S’s client’s office, complaining of a fever of 102.5, but no other symptoms. The group practice OB-GYN on call returned the patient’s call and, after a verbal assessment of her condition, prescribed ciprofloxacin—another antibiotic—in view of the patient’s refusal to go to an ED for evaluation, as recommended.
The following Sunday, the patient went to the ED of a different hospital close to her home in northern New Jersey, complaining of pain and drainage at the wound site. An infection was diagnosed, she was admitted and the wound was surgically opened, debrided, packed and left open to heal. Complete healing took months because it was a deep wound.
The plaintiff claimed that FKC&S’s client’s failure to leave the wound open and/or to place a drain, and her failure to prescribe post-discharge prophylactic antibiotics, caused the infection that required extensive subsequent treatment.
FKC&S filed a motion for summary judgment, arguing that (1) the type and location of wound did not require that it be left open or have a drain, so its closure was in accordance with the standard of care, (2) in the absence of any infection at discharge, there was no medical reason to prescribe prophylactic antibiotics and (3) the later-diagnosed infection started days after FKC&S’s client’s treatment, and was caused by a gastrointestinal bacteria not present when she left the hospital. In support of the motion, FKC&S proffered the expert OB-GYN opinion of their client, and the expert opinion of an infectious disease physician.
In opposition to the motion, the patient offered the expert opinions of a urologist and an infectious disease doctor who collectively asserted that the wound should have been left open, that prophylactic antibiotics should have been prescribed at discharge and that the later infection was caused by FKC&S’s client’s failure to take those steps.
Based on the arguments FKC&S made in reply, the court rejected the patient’s urology expert because she had not demonstrated any expertise in OB-GYN or general surgery. The court further determined that the patient’s experts’ opinions about the source and timing of the patient’s infection were based on facts not in the record or were squarely contradicted by the medical records, and that the experts failed to rebut FKC&S’s other arguments. On these grounds, the court granted FKC&S’s motion and dismissed the complaint.