Malpractice: How I foiled a frivolous claim

December 3, 2004

Threatened by a malpractice claim over a "foreign object" in a former patient, this doctor fought back—and stopped the suit before it started.

It all began innocently on a warm summer day in 2002, when I received a request from an ob/gyn in another city for records on a patient I'll call Mrs. Vail. She had apparently moved away, and was changing doctors. Although I hadn't seen her in more than eight years, I still remembered her: a very nice woman with extensive endometriosis. I had done a laser laparoscopy on her in 1990, and she'd had a good recovery.

In 1992, however, Mrs. Vail had returned with increased symptoms, and we'd elected to do a total abdominal hysterectomy and bilateral salpingooophorectomy. Again, the surgery and the recovery had gone well. I recalled that she'd brought me a bottle of fine merlot as a gift on one of her post-op visits.

I hadn't seen Mrs. Vail since 1996 when she'd been in for a checkup, and I wondered how she'd been doing. After arranging to have her records copied and sent out, I returned to my busy practice without another thought about her.

All of this rushed through my head as I read the letter from Mrs. Vail's attorney. It claimed that I'd left a "blue cap" inside her abdomen during her laparoscopy in 1990, and demanded a payment of $250,000. If I didn't respond in 60 days, a lawsuit would follow.

Shocked, I immediately reviewed Mrs. Vail's chart, which showed that her laparoscopy had been uncomplicated. So I wondered what the "blue cap" could be. I couldn't recall any instrument that we use during a laparoscopy that had a blue cap. Besides, we should have seen the cap when we did the abdominal hysterectomy two years later.

So how could they be sure that this blue cap was a result of the laparoscopy? And how did they find it? Had it appeared during some recent exploratory surgery? I had to learn more about that blue cap, and I couldn't wait 60 days to find out.

Taking a proactive approach on defense I called my personal attorney and told him about the letter. I asked him to call Mrs. Vail's lawyer and set up a meeting with him to get more information. Then I called my malpractice carrier and discussed the case with them. I told them that the case had no merit, and I asked permission for my attorney and me to meet with Mrs. Vail's attorney to try to resolve the matter. They gave me their blessing.

My attorney set up the meeting in two weeks' time. In the meantime, I became obsessed with the blue cap. While playing baseball with my kids, or talking to a patient, or dictating a surgical report, it would suddenly enter my brain. I went to the OR instrument room and reviewed all the instruments used for laparoscopy and hysterectomy-no blue caps. Nor could any of my colleagues recall any instrument with a blue cap used during such surgeries.

On the day of the meeting, my attorney, knowing I had a Latin temper, instructed me to just listen, and not talk. When we arrived at the plaintiff's attorney's office, he began by summarizing the case for us. Apparently, Mrs. Vail had been having abdominal pain, and saw her doctor's physician assistant. He'd ordered a KUB, which revealed a "foreign body" in her abdomen. A few days later, she allegedly "passed" the mysterious blue cap from her vagina while on the toilet at home. The PA told her it had most likely been left in her abdomen at the time of her laparoscopy. That's when Mrs. Vail consulted the attorney.