Opinion
No. UWYCV075006785S
February 10, 2011
MEMORANDUM OF DECISION
Plaintiffs Jennifer and Robert Bona instituted this action alleging professional negligence in December of 2007 against Dr. Linda Matonis, her medical group, Naugatuck Valley OB/GYN Associates, P.C.(hereinafter NVOB/GYN) and Saint Mary's Hospital, Inc. The plaintiffs allege two claims of negligence arising from the labor and delivery of the plaintiff's fourth child, Nicholas, on September 6, 2005. The first is that Dr. Matonis should have immediately proceeded to perform a Cesarean section on the plaintiff instead of starting her on Pitocin and second that the defendants failed to properly insert a Foley catheter just prior to the Cesarean. The complaint alleges that they have suffered great losses and damages as a result of the defendant's negligence and will continue to do so. The plaintiff Robert Bona's claims are loss of consortium and are derivative in nature and are dependant upon the success of his wife Jennifer's claims. The matter was tried to the court on divers days over the month long period of mid-November to mid-December of 2010. Thereafter, the parties submitted post-trial briefs.
To prevail in this medical malpractice action, the plaintiffs must prove: (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury. Boone v. William W. Backus Hospital, 272 Conn. 551, 567 (2005). These elements must be proven by a preponderance of the evidence. Hayes v. Camel, 283 Conn. 475, 927 (2007). "[S]uch preponderance does not refer to the number of witnesses but rather the evidence that is superior and more likely to be in accord with facts." Verdi v. Donahue, 91 Conn. 448, 450 (1917). It is "the better evidence, the evidence having the greater weight, the more convincing force." Cross v. Huttenlocher, 185 Conn. 390, 394 (1981) (internal quotation marks omitted).
The fact that a treatment or procedure may have been followed by an injury is insufficient to establish negligence. Mozzer v. Bush, 11 Conn.App. 434, 438 (1987). Accordingly, the natural consequences of a treatment or procedure are not compensable, absent a breach of the standard of care. Moreover, "a plaintiff must establish a causal nexus between the physician's negligent actions or failure to act and the resulting injury by showing that the action or omission constituted a substantial factor in producing the injury." Edwards v. Tardif, 240 Conn. 610, 614-15 (1997). A plaintiff must demonstrate "a causal relationship between the injury and the physical condition which he claims resulted from it." Aspiazu v. Orgera, 205 Conn. 623, 630 (1987). "No matter how negligent a party may have been, if his negligent act bears no relation to the injury, it is not actionable." Gordon v. Glass, 66 Conn.App. 852, 856 (2001).
Also, expert testimony is required to establish the requisite standard and that the defendants' conduct fell below the standard of care. Giblen v. Ghogawala, 111 Conn.App. 493, 499 (2008). Moreover, "expert testimony is required, to establish the causal relation between an act or omission and its later physical effects." Gordon v. Glass, 66 Conn.App. 852, 856 (2001). "The expert opinion cannot rest on surmise or conjecture because the trier of fact must determine probable cause, not possible cause . . . In other words, the expert opinion must be based on reasonable probabilities." Id. Accordingly, absent credible expert testimony to establish the standard of care, breach and causation the plaintiffs' malpractice claim must fail.
In January 2005, Jennifer Bona, began treating at Naugatuck Valley OBGYN ("NVOBGYN") in connection with her third pregnancy. She was primarily followed by Dr. Chere but was also seen by other members of the group, including Dr. Matonis. Dr. Chere and Dr. Matonis are veteran physicians who have many years of experience caring for obstetrical patients. Dr. Chere has been practicing almost 30 years at the time of delivery, and Dr. Matonis had been practicing for 10 years. Prior to the subject labor and delivery, Dr. Matonis had delivered between 1,500 and 2,000 babies.
When she began treating at NVOBGYN, Ms. Bona advised the physicians that she had two prior vaginal deliveries, one in which she gave birth to twins. She also advised that she was diagnosed with an undefined collagen vascular disease for which she was actively treating. She was diagnosed with gestational diabetes and treated by an endocrinologist during both prior pregnancies. At the time Ms. Bona treated with NVOBGYN, there were four physicians on staff and a certified nurse-midwife. Each physician was on call on a rotational basis so that whoever was on duty during a patient's admission for delivery would care for the patient. If, during the physician's shift, the mother was ready to deliver, the doctor on duty would deliver the baby.
NVOBGYN's practice was to classify some patients as "high risk." The doctors met weekly to discuss the progress and management of these patients. Because Jennifer Bona had gestational diabetes, she was included on the "high risk" list and as such, her case was discussed each week at the physicians' meeting. Based on the plaintiff's history of gestational diabetes, two prior vaginal deliveries, and an undefined autoimmune history, the prenatal plan was to monitor and control her gestational diabetes and track the growth of the fetus by examination and periodic growth scans. Throughout her prenatal care, Ms. Bona was followed by Dr. Thomas Gniadek, an endocrinologist, who monitored her diet and prescribed insulin to control her sugar level.
One of the medical objectives of tracking sugar levels was to counsel the patient regarding her diet and control her sugar level so that the fetus would not grow so large that a vaginal delivery was too difficult.
It was reported during an office visit on June 17, 2005 that Ms. Bona's diabetes was under excellent control. Additionally, growth scans were performed to monitor the suspected size of the baby. One such report, dated August 30, 2005, noted that the fetus was at 36 weeks 2 days, with a suspected weight of 3191.478 grams (7 lbs) and the baby was in a vertex position (head down). On September 3, 2005, four days later, Ms. Bona met with Dr. Chere to discuss a plan for inducing the baby on September 7, 2005. Based on her history, the plan was to deliver the baby vaginally unless some complication occurred necessitating a C-section. This plan did not change once the patient's membranes ruptured on September 6, 2005 and she was admitted to Saint Mary's.
Ms. Bona was admitted to Saint Mary's about 1:47 AM. She was examined by the nursing staff where it was determined that she was not in active labor, which is defined as contractions every 2-3 minutes lasting 30 to 60 seconds. The baby was not yet engaged in the pelvis, the fetal heart rate was normal (FHR) 105-120 BPM, Ms. Bona's pain was measured at zero, and she was able to walk to the bathroom to void. Dr. Chere, who was on call until 7:00 AM, was in phone contact with the nursing staff on at least two occasions, but because the patient was not yet in "active labor" he did not examine her.
At 7:24 AM, Dr. Matonis saw Ms. Bona and performed an ultrasound to verify that the fetus was vertex. Ms. Bona was still not in active labor with contractions 10-12 minutes apart. Ms. Bona and Dr. Matonis discussed that Pitocin would be started to augment the labor process. Once Pitocin was started, Ms. Bona's contractions became closer and longer, and the labor progressed.
By 9:54 AM, the baby was engaged in the birth canal. At the plaintiff's request, an epidural pump was started, and by 12:30 PM, Ms. Bona's contractions were 2-4 minutes apart. By 1:45 PM, Ms. Bona was fully dilated and able to start pushing. With Dr. Matonis in the room, the patient was pushing with contractions. However, by 2:00 PM the epidural pump was turned off to allow for more effective pushing. It is most effective to push with a contraction, but the epidural, in managing the patient's pain, prevents the patient from feeling the contraction. By 2:44 PM, Dr. Matonis instructed the nurses to allow the patient to "labor down," until 3:00 PM and then to start pushing again. By 2:57 PM, Ms. Bona wanted the epidural pump restarted.
At 3:35 PM, Dr. Matonis examined the patient and noted that there had been no further descent of the baby. There was also some mild variable deceleration of the fetal heart rate. However, there was no fetal distress and, in fact, the last reading on the FHM before the patient was brought to the operating room was within normal limits.(110-120 BPM). At this time, Ms. Bona advised that she could no longer push because she was in too much discomfort. A discussion that followed included the option of a C-section to which Ms. Bona consented. She was then prepared for surgery, which included the insertion of a Foley catheter at 3:45 PM, and by 4:06 PM, Ms. Bona was taken to the operating room.
Both Nurse Sheedy and Nurse Froese have 25-30 years experience, most of which is as labor and delivery nurses at Saint Mary's. On September 6, 2005, Valerie Sheedy worked the 7:30 AM-3:30 PM shift and Donna Froese worked the 3:00 PM-12:00 PM shift. As is protocol, when Nurse Sheedy came on duty at 7:30 AM on September 6, 2005, she met with the on-duty nurse she was replacing to determine the status of the patient.
It is also protocol for the nurses to chart on a bedside computer the activity related to the patient's labor and delivery and postpartum care. The objective is to record the data contemporaneously with the event, but this is not always possible given the need to care for the patient, which is the primary concern.
Donna Froese came on duty as a decision was being made to perform a C-section and assisted in operating room as the circulating nurse. She recorded in the computer that at 3:45 PM "3-way stockcock applied, abdomen prep done, Foley inserted." She could not recall if she inserted the Foley herself since sometimes other nurses who are not specifically assigned to the patient assist in the preparation of the patient for surgery. However, she examined the contents of the Foley bag prior to, during, and after the procedure, manually recording what she observed. If, based on her training, she observed any aspect of the patient care which was not normal; she is required to notify the physician in charge.
Once in the operating room, final preparations were made for the delivery. Ms. Bona was positioned on the operating table. The anesthesiologist, Dr. Poupko, was responsible for administering pain medication and for monitoring fluids, to include urine draining into the Foley bag. Again, Nurse Froese was present as was the scrub nurse, Sandra Cary.
Once the surgical site was sterile, Dr. Matonis made a transverse incision (lateral) across the patient's lower abdomen. In order to visualize the uterus, the fascia and rectus muscles were dissected. The empty bladder, which partially sits on the uterus was surgically separated from the uterus with scissors and then retracted out of the field with a Balfour retractor. A second transverse incision was made across the uterus exposing the baby, which was wedged into the pelvis. In order to remove the baby from the uterus, Dr. Matonis had to reach into the uterus and lift the baby's head out, which caused an extension of the uterine incision (vertically) into the cervix. Nicholas was born at 4:25 PM.
After the delivery, Dr. Matonis completed the surgical procedure to include a repair of the uterine tear. She dictated her operative report on the same day shortly after the surgery. There is no mention in the report, or in any records, that there was any incident with the Foley, the bladder being full, or the need to break the sterile surgical field to insert a second catheter.
Also, Donna Froese made an entry in the chart stating "Foley in place draining blood tinged urine prior to OR and during OR," documenting that the Foley tube was successfully inserted in the bladder and draining urine. What she described as "blood tinged urine" was "urine in the bag with little specs of blood in it," which in her experience she has seen when a patient has a trial of vaginal delivery followed by a C-section. Additionally, Dr. Poupko, the anesthesiologist who is responsible for monitoring the patient's fluids including urine output, testified credibly that he would have reported to the other doctors if the Foley bag had contained dark red blood and not urine as claimed by the plaintiffs. If there was an abnormality, he would have also noted it in the anesthesiology record, which contains no notation about the urine.
The records reflect that Ms. Bona was not having any urinary or bladder problems prior to her release. There are no fewer than ten entries in the nurses notes following surgery and prior to the plaintiff's discharge from the hospital four days later that relate to either the bladder or urination, each unremarkable.
Over the following three weeks, the plaintiff saw three different doctors and made no complaints of urologic problems.
On the twenty-fourth day following surgery, Ms. Bona saw her primary care physician, Dr. Biondi, complaining that since delivery she had an unusual stream of urine. A blood sample was taken. Preliminary testing by a dipstick test indicated a trace of blood in urine. Microscopic examination of the same sample showed no blood in urine and no evidence of a bacterial infection. There is no mention of urinary discomfort.
Ten days later, Ms. Bona saw Dr. Biondi again and continued to complain of unusual urinary stream, but there were no complaints of painful urination or frequency.
On October 24, 2005, Ms. Bona saw Dr. Albini, Dr. Matonis's partner, for her last visit. She told the doctor that she was feeling well and did not offer any complaints, urologic or otherwise.
Ms. Bona first saw Dr. Moy, a urologist, on November 4, 2005. Now for the first time in any of her records, she complained that since her delivery on September 6, 2005 she has the sensation of razor blades when she urinates, passing of mucous and urgency.
Following an examination, Dr. Moy performed multiple diagnostic tests to include three urodynamic studies and eight cystoscopies to validate his patient's complaints. In each case, there was no evidence found of any injury to the urethra, such as stricture (narrowing of the pathway), scar tissue or a diverticulum (false passage within the urethra). One such test was performed on February 24, 2006 under anesthesia for the specific purpose of determining if there was a "urethral obstruction." The test was negative for any urethral damage and the bladder was normal but there were some early signs of interstitial cystitis in the bladder. Additionally, Dr. Moy made the following diagnoses.
Detrusor instability (unstable bladder),
Neurogenic like bladder (does not function at all) and
Interstitial cystitis (inflammation of the interior wall of the bladder).
Dr. Moy testified that none of these diagnoses or the treatment that followed was caused by a claimed misplaced Foley catheter in the urethra. Specifically, Dr. Moy said that the uroflow examination performed on December 1, 2005 showed a normal flow through the urethra, which was an indication that the urethra was not traumatized.
Dr. Moy also said that the sling procedure he performed on May 16, 2006 following the patient's hysterectomy was not because of a claimed traumatic insertion of a Foley catheter. Dr. Moy also acknowledges that the symptoms Ms. Bona complained of after the birth of her son were common for his diagnosis of interstitial cystitis, which medical condition did not result from the care given by the defendants.
Dr. Tejeda delivered the plaintiffs' first three children. Ms. Bona was seen by Dr. Tejeda on December 13, 2005 for "irregular bleeding." Upon examination, Dr. Tejeda felt some scarring in the right area of the cervix. This is a common occurrence when a C-section is performed. She recommended to Ms. Bona to wait one to two years to let the tissue heal.
On February 20, 2006, Ms. Bona called again with complaint of "still having severe menstrual like cramping." At that time, they discussed the possibility of a hysterectomy, if she did not want to see if the scar tissue from the surgery would subside over time and be less painful. Ms. Bona was leaning toward a hysterectomy because she told Dr. Tejeda that she did not want any more children. In addition, Ms. Bona always had a problem with chronic irregular bleeding, with slight discomfort, and a hysterectomy would manage those problems as well because the uterus is removed. Dr. Tejeda would not have performed the surgery if Ms. Bona wanted more children.
Based on this exam, Dr. Tejeda referred Ms. Bona to Dr. Tulikangas, a urogynecologist, for a second opinion. Ms. Bona told Dr. Tulikangas that she had "very painful intercourse" but did not have "frequent bladder infections." Upon examination, Dr. Tulikangas noted that there was no diverticulum, which could cause lower urinary tract problems, voiding problems or pain with intercourse.
Based on his assessment, Dr. Tulikangas gave Ms. Bona three options for care, one was a hysterectomy. Thereafter, Ms. Bona immediately scheduled her surgery. As noted by Dr. Tejeda, the hysterectomy was Ms. Bona's choice.
On May 16, 2006, Dr. Tejeda performed the surgery. She removed the uterus and adhesions between the bladder and anterior of the uterus. This is a normal consequence of any C-section. In conjunction with this surgery, Dr. Moy performed the sling procedure. Unfortunately, even though the hysterectomy was to resolve pelvic pain and pain with intercourse, Ms. Bona continues to experience these symptoms.
Records submitted into evidence disclose that Jennifer Bona did have prior urological complaints as well as pain management issues before the birth of Nicholas on September 6, 2005.
The court fully credited the testimony of Drs. Regan, Dreiss and Moy. Taken together their testimony was that there was no trauma caused by an improper insertion of the Foley catheter and Dr. Matonis did not commit malpractice by failing to proceed to perform a C-section immediately upon plaintiff's presentation at St. Mary's on September 6, 2006. (Indeed, it would have been impossible for Dr. Matonis to perform a C-section at 1:47 am as she was not on call and present at the hospital until shortly before 7 am.)
The plaintiffs failed to meet their burden of proof that the defendants departed from the standard of care as alleged in their complaint. Even if they had met this burden, the plaintiffs claims would fail as they failed to prove any causal connection to the conditions of which Mrs. Bona currently complains.
As the plaintiff Robert Bona's claim for loss of consortium is entirely derivative from his wife's claim of professional negligence, his claims must fail as well.
Judgment enters in favor of the defendants.