In caring for the patient, Defendant Doctor breached the standard of care [committed medical malpractice] in the following respects:

1 The law firm of Hixson & Brown filed suit on behalf of a client who had her colon unnecessarily removed for suspected diverticulitis or suspected widespread diverticulosis. After removal of the colon, the client suffered post surgical complications of hypovolemic shock, infection, sepsis and extreme pain exacerbations. Due to medical negligence, the physician failed to timely take the client back to surgery. Ultimately, the patient lost approximately 2/3rds of her small bowel and was left with short gut syndrome.

Detailed Expert Report Provided By Surgical Expert Hired By Hixson & Brown Law Firm On Behalf Of The Client: The following is a verbatim copy of a surgical experts’ report in the case of medical malpractice against the physician and the hospital. The name of the client as well as the name of all physicians and the defendant hospital have been redacted.

Begin Medical Expert Opinion:

“After reviewing the medical record of the patient along with the above described information, based upon my education, training and experience, I hold the following opinions within a reasonable degree of medical certainty within my profession:

In caring for the patient, Defendant Doctor breached the standard of care [committed medical malpractice] in the following respects:

A. In diagnosing the patient with diverticulitis in August and September of 2010, when the clinical signs and symptoms, along with the available labs and CT scans did not warrant such a diagnosis;

B. In failing to perform necessary diagnostic testing to rule out diverticulitis and to reveal that the patient’s pain was being caused by her ovarian cyst; C. In failing to inform the patient that she had a left ovarian cyst that was likely the cause of her left lower quadrant pain;

D. By failing to recommend the removal of the patient’s left ovarian cyst before removing her colon or, in the alternative, by failing to refer the patient to a gynecological expert so she could receive appropriate care and treatment for her ovarian cyst;

E. In failing to obtain necessary and appropriate informed consent before performing a subtotal colectomy;

F. In recommending the removal of the patient’s entire colon;

G. In performing an unnecessary surgery on the patient and during such procedure unnecessarily removing her entire colon;

H. In failing to send the patient’s ovary and ovarian cyst for pathological examination;

I In failing to inform the patient that he had removed an ovarian cyst and the patient’s left ovary during the surgery on 9/10/10.

J. Postoperatively, by failing to appropriately and timely resuscitate patient when her clinical picture on 9/10/10 and 9/11/10 reflected she was suffering postoperative hemorrhagic or hypovolemic shock;

2 K. By failing to timely and appropriately determine that the patient was

suffering from a surgical bleed that required surgical intervention;

L. By failing to timely and appropriately determine that the patient was likely suffering from an anastomotic leak that required surgical correction;

M. By over-medicating the patient with pain medications that masked her ever increasing pain and the fact that she had an acute abdomen by 9/17/10; N. By over-medicating the patient with acetaminophen that masked her fever and the fact that she had an abdominal infection likely due to an anastomotic leak by 9/17/10; and

O. By failing to appreciate that patient was on antibiotic therapy that was likely masking her WBC and by failing to appreciate the patient’s “left shift” was likely revealing an infection in her abdomen by 9/17/10.

The above breaches in the standard of care [medical negligence] can be broken down into three distinct areas. The first area deals with the lack of medical criteria to justify removal of patient’s colon in the first place. The second area deals with the immediate postoperative period during which the patient was in shock and there was inadequate resuscitation of the patient. The

third area deals with Defendant Doctor’s action or inaction in failing to take the patient back to

surgery long before 9/23/10. Each of these areas will be addressed separately and in order.

I. DEFENDANT DOCTOR BREACHED THE STANDARD OF CARE IN

REMOVING PATIENT’S ENTIRE COLON FOR SUSPECTED

DIVERTICULITIS

Before beginning, I want to be clear. Defendant Doctor had no medical justification whatsoever to recommend or to remove patient’s colon on 9/10/10. To understand this it is helpful to understand what is diverticulitis, including its signs and symptoms. These include the clinical signs, laboratory findings and radiographic findings.

A. WHAT IS DIVERTICULITIS?

The following description of diverticulitis is provided in Up-To-Date:

Diverticulitis — Diverticulitis represents micro- or macroscopic perforation of a diverticulum. The primary process is thought to be erosion of the diverticular wall by increased intraluminal pressure or inspissated stool within a diverticulum; inflammation and focal necrosis ensue, resulting in perforation.1

A small perforation may be walled off by pericolic fat and mesentery. This may lead to a localized abscess or, if adjacent organs are involved, a fistula or obstruction. In comparison, poor containment results in free perforation and peritonitis.

1

As will be discussed in more detail later, the pathologist, [treating physician], found no evidence of any perforation of any diverticulum in Patient's colon.

3 The clinical presentation of diverticulitis depends upon the severity of the

underlying inflammatory process and whether or not complications are present. Complicated diverticulitis refers to the presence of an abscess, fistula, obstruction2, or perforation while simple diverticulitis refers to inflammation in the absence of these complications.

B. CLINICAL SIGNS OF DIVERTICULITIS:

Some of the clinical signs and symptoms of diverticulitis are identified as follows: 1. Typically present with left lower quadrant pain.3

2. Physical exam usually discloses localized tenderness in the area of the diverticulitis.

3. Fever will be present in the majority of patients with active diverticulitis 4. The white blood cell (WBC) count is frequently elevated.

With respect to these clinical signs and symptom of diverticulitis, Defendant Doctor agreed and testified as follows:

Q. Doctor, would you agree with the statement regarding clinical features of diverticulitis that typically they present with left lower quadrant pain?

A. Correct.

Q. May have change in bowel habits, diarrhea, constipation? A. Correct.

Q. May have nausea or vomiting? A. Correct.

Q. Localized tenderness in the area of the diverticulitis? A. Correct.

Q. Bowel sounds are typically depressed? A. Can be.

Q. Is it typical or are you just saying it can? A. Yeah.

Q. Typically they can be? A. Typically.

Q. Fever's present in a majority of patients?

A. I'm not sure that's true. I mean, I'm not sure that the majority have -- at least don't have a persistent fever, let's put it that way. Don't have a persistent, they're feverish all the time. Maybe they feel warm at a time or two, but it's not a persistent thing.

2

As will be discussed in more detail later, the pathologist, }treating physician], found no evidence of any "abscess, fistula or obstruction in Patient's colon.

3 _{Some patients may have right quadrant pain, but it is not as typical. It is believed that diverticulitis is more}

prevalent in the descending and sigmoid colons (LLQ) due to the increasing intraluminal pressures seen in the distal colon.

4 Q. Okay. Other than being persistent, do a majority of patients have some

evidence of fever at some point, to your knowledge? A. At some point.

Q. And that's at some point when they have the acute or active diverticulitis; correct?

A. Active process, yes.

Q. And do you agree with the statement that the white blood cell is frequently elevated?

A. Frequently, but not always.

Q. And once again, it's frequently elevated because of the infection that's going on in the diverticula; correct?

A. Correct.

Q. And these items that I've just discussed as clinical features of diverticulitis, are these items that you use in your practice to confirm or diagnose diverticulitis?

A. Correct.

(Defendant Doctor Depo., pp.28-30).

C. RADIOGRAPHIC FINDINGS CONSISTENT WITH DIVERTICULITIS:

In addition to clinical signs and symptoms, radiographic testing is also utilized in the diagnosis of diverticulitis. With respect to patient’s case, two pre-operative CTs were obtained. With respect to radiographic evaluation of diverticulitis by CT, the following is provided in

Up-To-Date:

CT scan — Computer tomographic (CT) scanning of the abdomen with IV and oral contrast is the diagnostic test of choice in patients suspected of having acute diverticulitis. It is useful for diagnosis, assessment of severity, therapeutic intervention, and quantification of resolution of the disease. The sensitivity, specificity, positive, and negative predictive values of helical CT (with colonic contrast only) were 97, 100, 100, and 98 percent, respectively, in a study that included 150 patients presenting to the emergency department with clinically suspected diverticulitis.

CT features of acute diverticulitis include:

Increased soft tissue density within pericolic fat, secondary to inflammation — 98 percent

Colonic diverticula — 84 percent Bowel wall thickening — 70 percent 4

Soft tissue masses representing phlegmons, and pericolic fluid collections, representing abscesses — 35 percent

***

5 CT also stages the extent of pericolic inflammation, which was underestimated by

contrast barium enema in 41 percent of patients in one series. Findings on CT have been classified as mild (localized colonic wall thickening

and

Up-To-Date, “Clinical Manifestations And Diagnosis Of Colonic Diverticular Disease,” last

updated: 9/28/10. As will be discussed in more detail below, patient never had any CT findings warranting a diagnosis of “severe” or “complicated” diverticulitis and, did not have the necessary medical criteria for Defendant Doctor to “offer elective resection” of her colon.

D. MEDICAL EVIDENCE DID NOT SUPPORT THE REMOVAL OF

PATIENT'S ENTIRE COLON.

I have reviewed the report and deposition of the pathologist, [treating physician], who performed the initial macroscopic and microscopic examination of patient’s colon. Based on [treating physician’s] gross examination, there was evidence of diverticulosis, but no evidence of diverticulitis. His microscopic and macroscopic examinations also did not reveal any evidence of a perforation of a diverticulum and no evidence of an acute or active infection. This was similar to the findings of [treating physician], the pathologist at the University of Nebraska Medical Center, who examined the pathology slides for patient in conjunction with her care at UNMC. [Treating physician’s] report indicated that he did not find any pathological evidence of diverticulitis. Lastly, the findings of these pathologists is confirmed by the report of [Expert

hired by Hixson & Brown], the expert pathologist from one of the Harvard Medical

School-affiliated hospitals, who indicates that the pathology slides for patient did not reveal any evidence of diverticulitis.

Thus, in hindsight we know that patient’s bowel did not exhibit any pathological evidence of diverticulitis.5 However, that is not the question that needs to be answered. What must be evaluated is whether or not the patient had the necessary signs and symptoms of diverticulitis to support Defendant Doctor's recommendation and decision to remove her entire colon. For the reasons set forth below, there was insufficient medical evidence to support

Defendant Doctor’s recommendation to remove the patient’s colon and insufficient medical

evidence to support the actual removal of the colon.

1. 7/24/10 Hospitalization:

5

Within a reasonable degree of medical certainty, Patient did not suffer from diverticulitis in August and September of 2010.

6 Patient was hospitalized on 7/24/10 “with abdominal pain, especially in the lower left quadrant and some in the lower right quadrant.”. The physical exam by the patient’s primary care physician revealed the following:

ABDOMEN: Protuberant with pain in the lower left quadrant, rebound tenderness with guarding and rigidity. No bowel sounds. No trajectory pain to the top of the shoulders or to diaphragm. Negative Cullen’s, Lloyd's, or Murphy’s signs.

There is no mention of any abnormal findings in the patient’s right upper or lower quadrants. The Abdominal Pain Assessment Sheet completed by nursing indicted that the patient had no guarding and no rebound tenderness. The nurse also documented hypoactive bowel sounds with abdominal pain only in the “LLQ.” Based on the clinical examination and history, diverticulitis was suspected and further tests were ordered. In addition, a consultation with Defendant

Doctor, a general surgeon, was requested.

An abdominal CT was performed on 7/24/10, which revealed the following: Abdomen: Low dense liver consistent with fatty infiltration. *** Cyst superior pole right kidney. ***

Pelvis: There is mural thickening with a focal area of low density in the cecum with a focal diverticulum present. Pericolonic fat stranding is also identified. The presence of focal diverticulitis should be considered. See axial image number 52 coronal image number 26. Focal mural thickening is also identified closer to the hepatic flexure and is a nonspecific finding which may represent another segment of inflammatory change. Coronal image number 19 and axial image number 48. Surgical clips are present in the abdomen. Sigmoid colon surgery is identified. No free air is identified. There is a left ovarian cyst the uterus is absent.

The abdominal wall has a normal appearance~ Minimal degenerative changes of the lumbar spine are present.

IMPRESSIONS: Mural thickening and fat stranding in the right colon in two places. Consider diverticulitis. Additional imaging may be necessary to rule out other pathology

The thickening of the colonic wall and inflammatory changes could be representative of “mild diverticulitis.” There was no evidence of abscess, fistula or any other CT findings that would indicate that the diverticulitis was “complicated” or “severe.” I have reviewed the expert report of [Expert hired by Hixson & Brown law firm], which states the following with respect to the 7/24/10 CT scan:

There is evidence for surgical anastamosis in the sigmoid colon in the pelvic region. There are few surgical clips noted in the lower abdomen-pelvic region.

7 There is scattered diverticuli in the colon. In the cecum/ascending colon region,

focal thickening of the colonic wall with mild regional pericolonic inflammatory fat stranding is observed along with presence of few diverticuli in this region. The length of the focal thickening measures approximately 5 cm. These findings are most suggestive of a mild right sided diverticulitis. There is no evidence for a free air or fluid collection in the abdomen. Rest of the colon shows no obvious changes of inflammation.

Additionally, there is a cyst in the left ovary measuring about 3.8 cm without any enhancing mass or discernable septations. This could be physiologic cyst in a menstruating woman but in a post menopausal woman, a pelvic ultrasound exam can be considered to evaluate the character of this lesion.

A simple cyst measuring about 5 cm is also seen in the right kidney. Liver appears slightly lower in its attenuation which could be attributed to underlying fatty changes or steatosis.

Based on the above, the patient’s differential diagnosis would have included mild diverticulitis, left ovarian cyst or possibly ovarian torsion. These CT findings needed to be considered along with the clinical findings and any available laboratory evidence.

With respect to the CT scan and the clinical findings, possible diverticulitis in the ascending colon provided no explanation for the patient’s left lower quadrant pain. The CT scan found no evidence of problems in the left lower quadrant, except for the 3.8 cm ovarian cyst. Laboratory studies revealed normal WBC and Neutrophils (no signs of infection). In addition, on admission, the patient’s temperature was 98.5 and she remained afebrile during the entire hospitalization. At this point in time, the best explanation for the left lower quadrant pain was the left ovarian cyst.

During the patient’s hospitalization, there is no documentation of RLQ or RUQ pain upon examination by any medical care provider. In fact, it appears that the physician who saw the patient on 7/25/10 realized the questionable diagnosis of diverticulitis stating the following in his physician note:

CT scan = Diverticulitis. Pain is some better.

Soft ABD with little rebound.

The CT abdomen shows possible pathology Undetermined – needs scope & MRI.

On 7/26/10, the patient was seen in the hospital by Defendant Doctor. Defendant Doctor’s note states:

8 Imp: 1) Acute Diverticulitis, resolving on antibiotics. Needs colonoscopy in 6-8

weeks to eval extent of disease and to R/O co-existing pathology.

With respect to this hospital visit, Defendant Doctor testified that he reviewed the 7/24/10 CT scan and was aware of the left ovarian cyst as well as the CT scan revealing significant findings only in the right colon. He testified:

Q. And just so our record's clear, I know we talked about the cyst, you not appreciating it.

As you sit here today, do you recall if when you read this CT of 7-24 of '10, do you recall today whether or not you saw, at the bottom, that there was a left ovarian cyst?

A. Yes.

Q. So you did see it?

A. Yeah. It was part of the reason why I went and looked at the CT scan, because of the fact that he hadn't -- hadn't indicated a size with it, to see. And it was, to me, on the CT scan, as I recall, it was hardly noticeable, so it was a small cyst.

***.

Q. Okay. So regardless of what you looked at, when you went back to the CT, you knew that basically all of her findings were on the right side of her colon, her radiographic findings?

A. Correct.

Defendant Doctor’s testimony regarding his knowledge about the cyst at this time along with his

knowledge of its size is confusing and questionable at best. Although Defendant Doctor said the cyst was “small”, [Expert hired by Hixson & Brown law firm] report reflects that the cyst measured 3.8 cm on both the 7/24/10 and 8/2/10 CTs. This is not a “small cyst.” In addition, elsewhere in his deposition Defendant Doctor testified that he did not “appreciate” the cyst until the surgery that took place on 9/10/10. This seems to be confirmed by the wording of the 9/10/10 operative report which states: “With exposure down to the pelvis, it was apparent there was a small left ovarian cyst present.” (p.0229). Furthermore, in his ER report on 8/2/10, [treating physician] stated:

Defendant Doctor has seen her in consultation and states this is the only thing

that is probably wrong, because she does not have any of the female organs.

Such a statement by Defendant Doctor to [treating physician] would be inconsistent with

Defendant Doctor having knowledge of the patient’s left “ovarian” cyst.6 However, even if he

6

From a medical standpoint, it appears more likely that Defendant Doctor failed to see the mentioning of the ovarian cyst on the CT reports prior to recommending the removal of Patient’s colon. Of course, if this is what occurred, it would be a breach in the standard of care [medical negligence] for Defendant Doctor not to have

9 did “appreciate” the cyst on 7/26/10 when he saw the patient and even if he did believe it was “small”, Defendant Doctor acknowledged that even small cysts could be painful.7

In spite of the fact that Defendant Doctor was aware (by his own report) of the ovarian cyst on 7/26/10 and was aware that the ovarian cyst was in the area of patient’s LLQ pain, he failed to inform the patient of the cyst. More importantly, he failed to inform the patient that the ovarian cyst could be causing her pain and he failed to include it in his differential diagnosis. All

of these failures were negligent and were breaches in the standard of care / medical malpractice.

Given the patient’s clinical findings during the hospitalization from 7/24/10 – 7/26/10 and the CT findings confirming a 3.8 cm ovarian cyst in the exact area of the patient’s pain, the most likely source of her LLQ pain was the ovarian cyst along with a possible ovarian torsion. This finding should have prompted Defendant Doctor to refer the patient to a gynecologist for appropriate follow-up on the ovarian cyst. Defendant Doctor’s failure to make this diagnosis

and failure to refer the patient were negligence and were breaches in the standard of care / medical negligence.

It also appears that Defendant Doctor failed to take an adequate history from the patient. As noted above, in his ER report on 8/2/10, [treating physician] stated:

Defendant Doctor has seen her in consultation and states this is the only thing

that is probably wrong, because she does not have any of the female organs.

Had Defendant Doctor taken an appropriate history from the patient he would have learned that the patient had had problems with ovarian cysts in the past and that she still had her left ovary. An office note dictated on 6/25/10 (just one month early provides):

CC: The patient comes in today, complaining of left lower abdominal pain. HPI: Patient states that she has had this pain off and on for several months. She states, yesterday, she had a lot of stomach pain. She states she has had trouble in the past with ovaries on her cysts 8 and she has also had history of diverticulitis. … Patient had hysterectomy in February 2008 and had her right ovary removed. The left ovary was preserved. Her last bowel movement was yesterday. She usually does have a bowel movement daily. Patient describes the pain as sharp. …

Physical Exam:

… Pelvic exam is benign. There is no recreation of discomfort when the adnexa, left or right is palpated.

7 _{Defendant Doctor, p. 68, L.3-6:}

A. I think small cysts are less likely to be painful. Could it be, yes, possibility. But as I just explained, more likely, cysts are much more likely to be symptomatic once they reach a larger size.

8 _{This typo is in the original record. Assume it was to say the patient “has had trouble in the past with cysts on her}

10 ABDOMEN: Exam shows tenderness in the left lower quadrant, more consistent with where the sigmoid colon is.

ASSESSMENT: Likely diverticulitis.

PLAN: Flagyl 100 mg three times a day times 10 days…

If Defendant Doctor had taken an adequate history from the patient, he would have known that the patient had a history of having trouble with ovarian cysts. He also would have confirmed that the patient still had her left ovary, which was contrary to the statement that Defendant

Doctor made to [treating physician] as noted above.

2. 8/2/10 Hospitalization:

Patient next presented to the ER on 8/2/10 at 1520 hours after being seen in the office of her family physician for complaints of abdominal pain. The family physician questioned diverticulitis and sent the patient to the hospital for another CT scan. Id. A CT scan was performed on 8/2/10 and the radiologist’s report provides:

Pelvis: The inflammatory change identified in the right colon appears to clear. There is a new focus of increased density in the sigmoid colon adjacent to and proximal to the GI staples. Pericolonic fat stranding is also seen. There is no change in the left ovarian cyst.

IMPRESSIONS: Resolution of the inflammatory change in the right colon. New inflammatory change in the left colon adjacent to the GI staples on image 65 through 69.

Of significance, contrary to the 7/24/10 CT report, this time the radiologist made no finding of diverticula, made no finding of thickening in the colonic wall and does not include “diverticulitis” as a possible radiologic diagnosis. With respect to this same CT scan, the report of [Expert hired by Hixson & Brown law firm] states the following:

Resolution of focal colonic thickening and pericolonic changes on the right is observed. The thickness of the colon near the cecum is now within normal limits. Minimal strandiness in the fat near the cecum and a few small lymph nodes (not enlarged by radiologic criteria) in the vicinity persists. Strandiness in the fat adjacent to the sigmoid colon that extends along the pelvic side wall is now observed without any signs of thickening of the colonic wall in this area. There is no fluid collection or abscess in the abdomen and pelvis.

Additionally, the cyst in the left ovary measuring about 3.8 cm without any enhancing mass or discernable septations remains grossly unchanged. This could be physiologic cyst in a menstruating woman but in a post menopausal woman, a pelvic ultrasound exam can be considered to evaluate the character of this lesion.

11 A simple cyst measuring about 5 cm is also seen in the right kidney. Liver appears slightly lower in its attenuation which could be attributed to underlying fatty changes or steatosis.

The patient was seen in the hospital on 8/3/10 by Defendant Doctor and his note states the following:

Pt. known to me from previous consultation re suspected R sided diverticulitis. Now presents with more pain L LQ. Previous sigmoid resections for diverticular disease. CT scan c/w diverticulitis without evidence abscess/perforation.

Admitted for IV antibiotics.

PE: afebrile. VSS. Abd. tender L LQ without peritoneal signs. Labs: Hgb: 13.7; WBC: 7,000 with 59 segs.

Imp.: Acute Diverticulitis, L sided.

Once again, Defendant Doctor’s note makes no mention at all of the 3.8 cm ovarian cyst that is in the exact area of the patient’s LLQ pain. This is in spite of the fact that the patient does not exhibit any signs of infection (no fever, normal WBC, normal segs) or acute abdominal signs that one would usually expect with active or acute diverticulitis. Defendant Doctor testified accordingly:

Q. *** Based on your review of the abdominal CT, did you see any inflammation or mural thickening in the right ascending colon --

A. No.

Q. -- on the 8-2 of '10 CT? A. Sorry. No.

Q. So in that respect you would agree with the radiologist's findings? A. Yes.

Q. And the radiologist now indicates that there's a new inflammatory change in the left colon adjacent to the GI staples; correct?

A. Correct.

Q. And that would be the area that you've identified on Plaintiff's Exhibit 5 in red on the bottom of the descending colon; correct?

A. Correct.

Q. Now, in the CT done on July 24th, the radiologist, you understand they have diagnostic criteria that they use in reaching a possible radiology diagnosis; correct?

A. Correct.

Q. And in using the radiologist's diagnostic criteria, the radiologist indicated possible diverticulitis; is that right?

A. On July 24th he indicates the presence of focal diverticulitis should be considered.

Q. All right. Doesn't say that he found it, just said that's something you ought to consider; correct?

12 Q. Now, on the 8-2 of 2010 CT, when you reviewed his report, you were

aware that he didn't mention diverticulitis at all? A. Correct.

Q. And that he had mentioned it in his previous report; correct? A. Correct.

Q. So did that tell you, from a radiology diagnostic criteria standpoint, the radiologist didn't have enough to suspect diverticulitis?

A. He didn't have enough -- for instance, on that first exam from 7-24, he had seen a diverticulum, so obviously that gave him the leeway to call it as that. Whereas in the other, he doesn't see any diverticulitis. So no, he's not mentioning diverticulitis.

Q. And when you went back and looked at the slides or images, and I think he references images 65 through 69 showing the inflammatory change, I assume you looked at those slides or images?

A. Yes.

Q. And would you agree that you couldn't see any diverticula in those images?

A. Correct.

Q. Did you have any discussion with the radiologist regarding his findings? A. No.

Q. Didn't talk to him at all about why he didn't include diverticulitis this time?

A. No. He's not here. ***

Q. Now, your August 3rd of 2010 doctor progress note indicates -- it says PE, physical exam, I assume; right?

A. Correct.

Q. Afebrile meaning she doesn't have a fever; right? A. Correct.

Q. When you say without peritoneal signs, can you tell me what you mean by without peritoneal signs?

A. Didn't have percussion tenderness, didn't have rebound -- positive rebound testing.

Q. No rigidity? A. No rigidity, right.

Q. Now, you indicate, on the labs, you specifically mention out of the labs that were drawn, her white blood cells of 7,000 and her segs --

A. 59.

Q. -- of 59. Now, why do you specifically point those out out of all the labs? A. Well, the white blood count is there as being followed as an indicator of level of infection or of infection, as well as the differential. The segs, segment and neutrophils, are really the one that help determine the amount of left shift, if you will, that point more and more to active infection.

Q. Okay. And so you were pointing out these labs to show, at least from a laboratory standpoint, there were no signs of an active infection?

13 Q. And at this time would you also have been aware of the prior labs done in

July, which also showed no active infection? A. Yes.

Q. So as of 8-3 of 2010, you knew that, based on both these hospitalizations, no labs had shown an active infection in patient?

A. Yes.

Q. And you would have been aware that at least up until this time there was no evidence of any signs of fever?

A. Correct.

Based on the above, Defendant Doctor was negligent and breached the standard of care

[committed medical malpractice] in diagnosing the patient with “Acute Diverticulitis – left sided” on 8/3/10. Although the CT showed “strandiness in the fat” in the distal colon, there was

no radiographic evidence of thickening of the colonic wall. Strandiness in the fat alone is insufficient to support a radiologic diagnosis of diverticulitis.9 Although 84% of CT’s will show evidence of colonic diverticula when diverticulitis is present, the 8/2/10 did not show any. See,

Up-To-Date, “Clinical Manifestations And Diagnosis Of Colonic Diverticular Disease,” last

updated: 9/28/10. Although 70% of CT’s will show evidence of bowel wall thickening when diverticulitis is present, the 8/2/10 did not show any. Id. In addition, the patient’s abdominal exam was rather insignificant with no percussion tenderness, no rebound tenderness and no rigidity.10 Lastly, the patient was afebrile and her labs showed no evidence of infection.

Once again, in spite of the fact that Defendant Doctor was reportedly aware of the ovarian cyst from the 7/26/10 CT and now from the 8/2/10 CT scan and was reportedly aware that the ovarian cyst was in the area of patient’s LLQ pain, he failed to inform her of the cyst. More importantly, he failed to inform her that the ovarian cyst could be causing her pain and he failed to include it in his differential diagnosis. These were all breaches in the standard of care

/ medical negligence.

Given the patient’s clinical findings during the hospitalization from 8/2/10 – 8/5/10 and the CT findings confirming a 3.8 cm ovarian cyst in the exact area of the patient’s pain, the most likely source of her pain was the ovarian cyst along with the possibility of ovarian torsion. Once again, this finding should have prompted Defendant Doctor to refer the patient to a gynecologist for appropriate follow-up on the ovarian cyst. Defendant Doctor’s failure to make this

diagnosis and failure to refer the patient were negligent and were breaches in the standard of care / medical negligence.

3. 8/26/10 Office Visit:

9

Defendant Doctor’s note of 8/3/10 states: “CT scan c/w diverticulitis.” Since the radiologist did not mention diverticulitis, it is assumed that this statement is based on Defendant Doctor’s own review of the CT scan. Due to a lack of diagnostic findings in the CT, it was not consistent with diverticulitis and it was a breach in the standard of care for Defendant Doctor to find that it was.

10 _{It is important to note that the patient’s primary physician on 8/4/10 stated: “She is going to have to have}

colonoscopy.” (p. 0125). A colonoscopy (or barium enema) was indicated because at this point in time there was insufficient medical evidence to confirm that diverticulitis was the cause of the patient’s problems.

14 On 8/26/10 the patient presented to the office of Defendant Doctor “with some continued discomfort in the left lower quadrant area.” Defendant Doctor performed a physical examination and the findings were as follows:

PHYSICAL EXAMINATION:

VITALS: On examination today, vital signs include temperature of 97.8, pulse 80 and regular, respiratory rate 18, and blood pressure 120/80.

ABDOMEN: The abdomen is actually fairly soft, with active bowel sounds. She is tender to deeper palpation in the left lower quadrant. No masses or organomegaly are appreciated.

Defendant Doctor’s note then reflects the following impressions and plan of care:

IMPRESSION:

Recurrent diverticulitis, slowly resolving on continued antibiotic therapy. PLAN: A long discussion is carried out with the patient and her husband regarding therapeutic options. Given her ongoing problems, it may well be that she ends up progressing to needing a subtotal colectomy to deal with the diffuse and entire involvement of her colon with diverticular disease.

At this point, I think it is worthwhile to give her another two weeks of antibiotic therapy and she is given prescriptions for Cipro 500 mg twice a day and Flagyl 500 mg three times a day for the next two weeks. I will then see her again in two weeks to evaluate the results of this therapy and the need for further

evaluation and/or definitive intervention. *** Given the smoldering nature of her diverticulitis, I do not think it wise at this point in time to consider

performing colonoscopy for fear of making the situation even worse. Certainly, when she returns in two weeks, if she does have ongoing

symptomatology, then consideration would be given to performing repeat CT scanning to evaluate the extent of her disease. Again, she may well end up heading to surgery for definitive surgical treatment.

As noted extensively above, there was insufficient medical findings to support a conclusion of “recurrent diverticulitis.” Even utilizing Defendant Doctor’s own criteria for diagnosing diverticulitis, there was a paucity of findings to even suspect diverticulitis. More importantly, the only significant finding that the patient had on 8/26/10 is the tenderness to deep palpation in the area of her left ovarian cyst. On this, Defendant Doctor testified:

Q. Right? Okay. So when you did your exam, she didn't have any evidence of peritoneal inflammation that would be potentially tender to lighter touch; correct?

A. Correct.

Q. And you said you're palpating over the entire abdomen. And is that your practice, to palpate the entire abdomen to see where we have complaints of pain or problems?

15 Q. And if you have a complaint of pain or a problem, then you would document

that as a significant finding in your record; correct? A. Correct.

Q. And so in this case the only place that you indicated that she was tender was on deep palpation in her left lower quadrant; right?

A. Correct.11

Q. And you would agree with me that that left lower quadrant would be in an area that would also include her ovarian cyst; correct?

A. Yes.

Q. Can you tell me, if you recall, Doctor, when you did this physical examination, while you were doing the examination, did you have a recollection at that time that, hey, the CT had shown an ovarian cyst down there?

A. I'm not sure if I specifically had that recollection.

Q. When you found that she was tender to deep palpation on the lower left quadrant, did you have any discussion with patient on 8-26 of '10 that this deep tenderness could be related to the cyst, ovarian cyst down there?

A. No.

Whether Defendant Doctor had a recollection of the ovarian cyst or not, he had an obligation to be aware of the cyst and to inform the patient of its existence. He also had an obligation to inform the patient that the ovarian cyst was a likely source of her left lower quadrant tenderness on 8/26/10. It was a breach in the standard of care and negligence for Defendant Doctor not

to have done so.

It should be noted that Defendant Doctor states in his 8/26/10 note that a repeat CT would be considered in 2 weeks “to evaluate the extent of her disease” if the patient continued to have ongoing symptoms. Not only should this have been considered, but it should have been required if Defendant Doctor was considering recommending the removal of all or part of the patient’s colon. Based on Defendant Doctor's clinical findings on 8/26/10 as well as the pathologist's post-operative examination of patient's colon, within a reasonable degree of medical certainty, a CT scan on 8/26/10 would not have shown any evidence of diverticulitis. To remove

the patient’s entire colon without further studies (ie: CT scan, barium study, colonoscopy) was malpractice and a breach in the standard of care.

4. 9/7/10 Surgical Office Visit:

The patient returned to the office of Defendant Doctor on 9/7/10, presumably for a consultation relating to her ongoing LLQ discomfort. Defendant Doctor performed a physical exam which is recorded as follows:

P. E.: On examination today vital signs are good, temperature 97.8, pulse 80 and regular, respiratory rate 20 and blood pressure 140/60. There is tenderness but

11 _{It is important to note that although Defendant Doctor later testified that he removed the patient’s entire colon}

because there was also evidence of thickening and inflammation in the ascending colon, the patient had absolutely no clinical findings to support any diagnosis of diverticulitis in the ascending colon.

16 without significant peritoneal signs in the left lower quadrant. No significant

mass or organomegaly are appreciated. The remainder of the abdomen is benign to examination.

The note then reflects the following impressions and plan: Impression:

1. Recurrent diverticulitis left lower quadrant as well as right colon. 2. Status post-previous sigmoid resection for complications of diverticular disease. …

P:….. I would propose doing an exploratory laparotomy with anticipated left hemicolectomy and most likely a subtotal colectomy as it is suspected that the patient has widespread diverticular disease and performing any lesser procedure would leave her at high risk for further episodes of complications of diverticular disease should any diverticular bearing colon be left in place.

The above impressions and plan/recommendation reflect a number of breaches in the standard of care that will be discussed in order. First, as discussed above, there was insufficient medical evidence to diagnose “recurrent diverticulitis”. The patient had a benign abdominal exam and the patient had no signs of any active infection or active diverticulitis. The only tenderness she had was to deep palpation over her left ovarian cyst, which was likely causing her pain.12 In addition, the patient had no medical evidence of “recurrent diverticulitis” in her “right colon.” There was no medical evidence to support these conclusions and it would have been negligent

and a breach in the standard of care to inform the patient of this diagnosis. Second, with

tenderness to deep palpation being the only significant finding on 9/7/10, it was medical

negligence and a breach in the standard of care for Defendant Doctor not to inform the patient of her left ovarian cyst or to inform her that this was the likely source of her pain. Third, although the patient had some evidence of “mild diverticulitis” by CT scan on 7/24/10

with no localized areas of pain, she never had evidence of “severe”, “complicated” or high risk diverticulitis. It was medical malpractice and a breach in the standard of care for Defendant

Doctor to recommend a left hemicolectomy or a subtotal colectomy given the paucity of

findings in this patient. This was especially true with respect to the subtotal colectomy because the 8/2/10 CT scan revealed that the possible diverticulitis in the ascending colon had resolved and the thickness of the colonic wall in the entire colon was within normal limits. Fourth, in his deposition Defendant Doctor was asked to draw the patient’s colon and to draw the areas of inflammation in both the ascending and descending colons. This was done on Exhibit 5 of his deposition. In the ascending colon Defendant Doctor identified 5-6 cm of inflammation or thickening. In the descending colon Defendant Doctor identified 9-10 cm of inflammation or thickening. There was no medical evidence of any other problems in any other areas of the patient’s colon. The pathology report revealed that the colonic specimen was 72 cm in length.13

12 _{Not only would a 3.8 cm cyst be a source of tenderness or pain during deep palpation, but Defendant Doctor}

testified that during the surgery he discovered that the ovarian cyst was adherent to the colon. This adherence to the colon may also cause pain or tenderness upon deep palpation. Defendant Doctor would have been aware of this fact when he saw the cyst and its adherence to the colon, which was prior to him dissection and removing the patient’s entire colon.

17 Thus, according to Defendant Doctor, 56 cm or more of patient’s colon revealed absolutely no evidence of diverticulitis. It is unconscionable for Defendant Doctor to recommend the removal of 56 cm or more of healthy colon, knowing that the only sign of ongoing problems with the patient was tenderness in the area of her ovarian cyst. Fifth, as mentioned above, Defendant

Doctor stated in his 8/26/10 note that a repeat CT would be considered in 2 weeks “to evaluate

the extent of her disease” if the patient continued to have ongoing symptoms. When the patient represented on 9/7/10 and Defendant Doctor continued to suspect diverticulitis, a CT scan should have been ordered if Defendant Doctor was considering recommending the removal of all or part of the patient’s colon. Based on Defendant Doctor's clinical findings on 9/7/10 as well as the pathologist's post-operative examination of patient's colon, within a reasonable degree of medical certainty, a CT scan on 9/7/10 would not have shown any evidence of diverticulitis.

To recommended the removal of the patient’s entire colon without further studies (ie: CT scan,

barium study, colonoscopy) was negligence and a breach in the standard of care / medical

malpractice.

5. 9/10/10 Colon Surgery:

On 9/10/10, Defendant Doctor performed the recommended surgery on the patient. As indicated in the surgical note of 9/7/10, this surgery was supposed to be an “exploratory laparotomy.” Exploratory laparotomies are often performed when a definitive diagnosis cannot be made based on the medical evidence available prior to the procedure. The purpose of the exploration in a situation like patient's is to go in and make a visual inspection to see what could be the cause of the patient’s ongoing tenderness in her left lower quadrant. Often times a surgeon will find something that was not anticipated that will require the surgeon to change the planned procedure or to change the scope of the procedure.

When Defendant Doctor entered the abdomen he encountered a significant amount of adhesions in the patient’s lower abdominal quadrants. Given the number of her prior surgeries, this was not an unusual finding. In Exhibit 5 Defendant Doctor identified these adhesions as being predominantly in the right lower quadrant and partially in the left lower quadrant. In his operative report Defendant Doctor indicated that the “lysis of adhesions” “took well over an hour” before the exploration could proceed. What the operative report does not discuss is the fact that these extensive adhesions could have been causing the patient’s lower quadrant pain. In his deposition, Defendant Doctor testified:

Q. Now, these adhesions that you encountered, were they more than you initially anticipated before you did the surgery?

A. Definitely. ***

Q. The extensive adhesions that you reflect in your postoperative diagnosis and that you've drawn on Exhibit 5, you indicated that they were extensive; correct?

A. Uh-huh. ***

18 Q. And is that something that can cause pain? Adhesions in their abdomen,

can they cause pain to a patient? A. Yes, yes.

Q. Can they cause significant pain? A. Yes.

During the surgery on 9/10/10, Defendant Doctor should have considered the fact that the patient’s significant adhesions could have been causing her the pain that she had experienced over the preceding months. There is no indication in the operative report that this was taken into account before removing the patient’s colon.

More importantly, after the adhesions were taken down and Defendant Doctor’s exploration into the pelvis continued, Defendant Doctor made the following finding:

With exposure down to the pelvis, it was apparent there was a small left ovarian cyst present, which was adherent to the distal descending colon.

With respect to this finding and the operation itself, Defendant Doctor testified:

Q. Okay. Now, I didn't see anything in your clinical summary on the first page about the left ovarian cyst or you talking with patient about that. Is there a reason why? A. I didn't appreciate it beforehand. I can't remember if it was indicated on the CT scan, but it was a finding at the time that had to be dealt with because of the fact that it lay over this -- right in this area where everything else was being done, and we just -- we couldn't complete the rest of the operation without taking that out. So it was one of those things that's always indicated as something necessary to the completion of the operation. Q. Okay. And I understand from your operative report that the ovarian cyst was actually adherent to the colon; correct?

A. The colon, yes.

Q. So when you say adherent, I take that as attached. Would I be correct? A. That is true.

Q. So this cyst on the left ovary was not only attached to the left ovary, but it also attached itself to the wall of the descending colon; correct?

A. Correct.

Q. And that attachment occurred in the area that you also have identified as inflammation; correct?

A. Correct.

Q. And is this also the area that patient was complaining of left lower quadrant pain?

A. Yes, yes.

Q. And I think you indicated that you hadn't talked to patient about this ovarian cyst because you hadn't appreciated it before this procedure; correct?

A. Correct. He also testified accordingly:

19 Q. But you would agree with me that as of your surgery on 9-10 of 2010,

you didn't know how big that ovarian cyst was? A. Correct.”14

***

Q. In fact, as you sit here today, you don't have a recollection of being aware of or appreciating the presence of a cyst --

A. Going in -- Q. Is that accurate? A. Yes.

Q. And that's -- Would you agree with me that would be the only reason why you wouldn't alert patient of the presence of an ovarian cyst and discuss that with her?

A. Correct.

It is unclear what Defendant Doctor knew or did not know about the existence of the left ovarian cyst since his testimony appears to be inconsistent throughout his deposition. However, if

Defendant Doctor's testimony is believed, then he did not know that the left ovarian cyst had

attached to the colon in the exact area of the patient’s complaint of tenderness. Defendant

Doctor should have known that the cyst and its attachment to the colon were likely the cause of

the patient’s ongoing tenderness in her LLQ. At this point in the surgery, by Defendant Doctor's testimony, he had identified two unexpected pathologies (extensive adhesions and ovarian cyst adherent to colon) that were likely sources of pain or discomfort for the patient. Having already removed the adhesions, Defendant Doctor should have removed the ovarian cyst, detached it from the bowel wall and concluded the procedure. Given the substantial risk to the patient of performing a total colectomy as well as the substantial morbidity caused by such removal, there was no medical justification for the removal of the colon. It was medical malpractice and a

breach in the standard of care for Defendant Doctor to continue on with the procedure and to remove the patient’s entire colon.

E. DEFENDANT DOCTOR’S JUSTIFICATIONS FOR HIS BREACHES IN

THE STANDARD OF CARE HAVE NO MEDICAL BASIS.

In reading Defendant Doctor’s deposition it becomes clear that he attempts to justify or excuse his unwarranted removal of patient’s colon. His attempted excuses have no medical basis.

1. Patient Did NOT Have “Significant Pain” justifying the removal of her colon.

At a number of places in his deposition Defendant Doctor attempts to justify his unwarranted removal of the patient’s entire colon based on his assertion that she was having “significant pain.” When initially discussing his 9/10/10 operative report and his discussions with the patient regarding therapeutic options, Defendant Doctor testified:

14 _{This testimony by Defendant Doctor under oath is directly contrary to Defendant Doctor stating that he looked}

20 A. That she had basically had six weeks of continuous and what would be considered adequate treatment normally for acute diverticulitis and that she was still continuing to have

significant

Q. So based on your recollection as of 9-10 of 2010, are you saying that she was still having

significant

A. Yes.

Q. And where was the pain?

A. Left-sided. Left lower quadrant.

Q. And is it your testimony, based on your recollection, that this left lower quadrant

pain at this time was

interfering with her activities of daily living

A. Yes.

He also testified as follows:

Q. So when you're thinking, in your mind, that she may have or you may encounter some active process, are you relying on your exam that you did on 9-7 or are you relying on Doctor Latella's pre-op or both?

A. Well, to some extent both, but also relying on the fact, pure and simple fact, that the

patient is continuing to have

significant

treating diverticulitis, if it's going to get better, they quit having pain. So the fact that she's having on-going pain makes you concerned that she has some on-going active inflammation.

***

Q. Now, since you indicated that she was having significant pain in her left lower quadrant, did you explore that area first?

A. Once we got the adhesions divided you mean? Q. Yes.

A. Yes.

Q. And would that have been because, once again, that's where she was complaining

most recently of

significant

A. Seemed to be where the money was, yes.

However, directly contrary to this testimony, the patient did not have “significant” pain prior to the surgery of 9/10/10. In fact, as Defendant Doctor documented in his notes of 8/26/10 and 9/7/10, the only complaint the patient had was of “tenderness” to deep palpation in the LLQ. Later in his deposition when the questioning was more specific on this very issue, Defendant

Doctor testified:

Q. So as of that time on 9-7 of 2010, she had no fever reflecting infectious process; correct?

21 Q. There's tenderness, I assume, in the left -- well, it says tenderness left lower quadrant; correct?

A. Correct.

Q. But no significant peritoneal signs, meaning she has no rigidity, no rebound tenderness; right?

A. Correct.

Q. And you couldn't palpate any mass at all; is that right? A. Correct.

***

Q. Okay. Then you say the remainder of the abdomen is benign to examination. What do you mean by that?

A. Meaning that there were

no

Q. Okay. So other than the tenderness, which I assume was the same tenderness she was having on 8-26 of '10; correct?

A. Correct.

Q. So other than that tenderness, you

didn't find

significant

A. Correct.

Q. And I assume this is tenderness to deep palpation that we had discussed in the previous exam?

A. I would assume. ***

Q. Okay. Now, from a medical standpoint, based on your medical examination of her this day, she wasn't having

significant

A. I think she was having some pain. But I mean, was she laid up with the pain, no. Q. Okay. And there's no indication in your medical record on this date, on 9-7 of '10, that she was having significant pain on this date that interfered with her activities of daily living. She was just concerned about the future and the unpredictability.

Is that fair?

THE WITNESS: Well, up above in that paragraph -- longer paragraph, under indications, I mean, she now has continued discomfort in the left lower quadrant area. I mean, it doesn't quantify it or anything else, but she does make that comment. I mean, she is still having the pain.

BY MR. HIXSON:

Q. Right. Which you took to mean the

mild

A. Right, correct.

Q. So back to my question, other than this

mild tenderness

did you find

any significant

pain on 9-7 of 2010

A.

No.

Q. And other than her complaint of mild tenderness to deep palpation, did you find any other clinical evidence of an active diverticulitis?

22 A. At the time on 9-7 you mean?

Q. Yes. A. No.

Contrary to Defendant Doctor’s original statement that the patient was have “significant” pain that warranted his recommendation for removal of the patient’s colon, the medical records shows the patient was only having “mild tenderness” in the area of her left ovarian cyst. As can be seen above, Defendant Doctor subsequently admitted that prior to the surgery of 9/10/10, the patient did not have complaints of “significant” pain and did not have pain that interfered with her activities of daily living. It was a breach in the standard of care and medical malpractice to

recommend removal of the patient’s entire colon due to ongoing “significant” pain when the patient only had “mild tenderness” to deep palpation over the area of her ovarian cyst.

2. Patient’s Colon Did NOT Reveal Signs of Inflammation and Thickening Justifying the Removal of Her Entire Colon?

Due to the paucity of clinical, laboratory and radiographic evidence of diverticulitis prior to the 9/10/10 surgery, Defendant Doctor testified that he ultimately based his decision on the removal of the patient’s entire colon on his assertion that the ascending and descending colon showed signs of inflammation and thickening during the 9/10/10 surgical procedure. He testified:

Q. Do you agree that gross examinations of diverticular colons reflect thickening of the muscle wall and shortening of the -- I'm going to pronounce it taeniea,

T A E N I E A? A. Yes.

Q. And with a resulting accordion-like bunching of the folds? A. Yes. .

***.

Q. And regardless of what the CTs showed, based on your recollection when you went in for the exploratory laparotomy, do these areas on Exhibit 5 accurately reflect the areas that you believe reflected inflammation or thickening of the colon?

A. I believe so. ***.

Q. And that's what I want to know, is what part of the surgery did you use in reaching your postoperative diagnosis of diverticulitis?

A. The -- the fact that she had inflammation and thickening in both of these areas.15 Q. Anything else?

A.

Not really

15

It should be noted that palpation is totally subjective. This would not be an objective finding supporting, on its own, the removal of the patient’s entire colon. The pathologist’s findings that the colon had no areas of

inflammation or thickening are objective findings revealing that Defendant Doctor’s subjective findings based on palpation were inaccurate.

23 Q. And when you say these areas, it's the areas in red that you identified on Exhibit 5 for me; correct?

A. Correct. ***.

Q. So when you explored that area, the -- we'll call the bottom area below the umbilicus down by the descending colon. You explored that first. Tell me what you found as you explored.

A. Well, just evidence of, as we had indicated on here previously, inflammation, thickening in this lower segment, which we felt was consistent with her seeming history of recurrent diverticulitis in that area.

However, we know that the 8/2/10 CT scan did not show any thickening in any parts of the colonic wall. More importantly, I did read the testimony of the examining pathologist. He testified as follows:

Q. So when you did your gross examination and you looked at the bowel as a whole, you said there's no area suggestive of exudate.

What does that mean?

A. That means that there is

no area suggestive of inflammation

or

infection on the exterior surface

Q. Okay. So when you did your gross examination and you looked at the outside of the colon, you didn't see any evidence that would show you that you had inflammation or infection on the outside; correct?

A. Correct.

Q. And did you find any areas that you considered the colon was

thickened

A.

I don't describe that

Q. Okay. And that would be a significant finding as a pathologist that if you had found that, you would document that.

Would that be fair? A. That would be correct. ***.

Q. So when you go through and you're looking through the entire length of this 72 centimeters, and you're looking through the adipose, did you find any gross examination that would indicate some abscess or sign of infection?

A. I don't describe that.

Q. And if you had found something like that, your standard practice would have been to document that as an abnormal finding.

Would that be fair? A. That is correct.

24 Based on the pathologist’s testimony, the 8/2/10 CT scan, the clinical findings and the laboratory findings, within a reasonable degree of medical certainty there were no abnormalities in the colon that justified its removal by Defendant Doctor on 9/10/10.

3. A Colonoscopy, barium enema, or Repeat CT Scan Should Have Been

Performed Before Removing Patient’s Entire Colon.

Throughout the preoperative period, there is discussion regarding a colonoscopy to “evaluate extent of the [diverticular] disease.” Defendant Doctor testified that he did not do the colonoscopy because the patient had signs of an active infection. However, the patient did not have signs of an active infection at the time of her surgery on 9/10/10. Defendant Doctor testified:

Q. So all of the clinical signs that you and I previously talked about, if most of those are basically back to normal, it tells you, okay, our active process is probably taken care of, it's okay to do a colonoscopy?

A. Subsided, yes.

By the time the patient visited Defendant Doctor’s office on 9/7/10, the patient had basically no clinical signs of an active infectious process. Defendant Doctor could have safely performed a colonoscopy or a sigmoidoscopy prior to removing patient’s colon. In the alternative, Defendant

Doctor could have order a CT scan which would have revealed that the patient did not have any

signs of thickening in her colon and, more likely than not, did not have any signs of inflammation. It would have also reconfirmed that the left ovarian cyst remained the only reasonable source of the patient’s ongoing “tenderness” in her LLQ. It was negligence and a

breach in the standard of care for Defendant Doctor not to order another CT scan or not to have performed either a barium enema or colonoscopy before removing the patient’s entire colon.

4. Defendant Doctor’s Explanation of the Removal of Patient’s Left Ovary and Left Ovarian Cyst Is Suspect and Raises Additional Issues Regarding the Standard of Care / Medical Malpractice.

As discussed above, from a medical standpoint, it is clear that patient’s left ovarian cyst was the likely cause of her LLQ tenderness. Defendant Doctor, by his own testimony, did not “appreciate” the ovarian cyst and did not discuss the existence of the ovarian cyst with the patient prior to the surgery of 9/10/10. However, once he did appreciate the cyst during the surgery, he removed it. I have several concerns and opinions regarding Defendant Doctor’s explanation as to why he removed the ovary and the ovarian cyst.

Defendant Doctor testified that he removed the left ovary and cyst because it was

adherent to the colon. In other words, Defendant Doctor said he dissected the ovarian cyst from the wall of the colon and removed it. I find no medical evidence to support this claim for the following reasons.