Scenario (based on a real Texas case): A woman with pelvic pain eventually underwent a hysterectomy by her gynecologist, which was successful and relieved the woman’s pain. However, later the patient complained of mild incontinence. The patient’s physician found that she had both herniations of the bladder and the rectum through the wall of her vagina. Since the patient’s stress incontinence had progressed, the gynecologist recommended surgery, but she did not discuss Kegel’s exercises with the patient (which are designed to strengthen muscles in a woman’s pelvic floor and muscles supporting the urethra). The surgery was performed and was successful in correcting the patient’s incontinence and the anatomical defects that caused it. However, after the surgery, the patient developed pain in her right leg. A second surgery was performed to release two sutures which the gynecologist believed might be impinging on the patient’s obturator nerve and causing the pain. The pain continued, and a second surgery on the patient’s leg was performed. The second surgery did not alleviate the patient’s pain despite referrals to and treatments by several sub-specialists. The pain and impairment in the patient’s right leg was finally diagnosed as due to nerve damage as a result of the hysterectomy. The patient filed suit alleging: (1) the gynecologist negligently failed to offer the non-surgical option of Kegel’s exercise; (2). The patient would have chosen and performed the non-surgical option had it been offered; (3.) the Kegel’s exercises probably would have corrected the patient’s incontinence without surgery; and (4) the patient’s nerve damage would have been avoided if the surgery had not been done.
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Applying the elements of negligence, is there any problem with the patient's negligence theory?
If you were the attorney for the physician, what would you argue to absolve the physician of liability?
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