April 20, 2022

The Court of Appeals of North Carolina (“North Carolina Appellate Court”) affirmed in its published opinion filed on February 15, 2022 that summary judgment was properly entered in favor of the defendant surgeon involving claims that the surgeon improperly failed to advise the plaintiff that he implanted a Gore-Tex adhesion barrier during fibroid surgery in 2007 and intentionally concealed that fact from her.

During the surgery, the defendant removed the plaintiff’s large uterine fibroid and many of the endometrial adhesions. After the surgery, the defendant documented and diagrammed the extent of the plaintiff’s endometriosis, and noted in her chart that her prognosis regarding fertility was guarded even with removal of the fibroid and the assistance of in vitro fertilization (“IVF”). The plaintiff alleged that the defendant told her and her husband after the surgery “to rest for three months, and after that there was no reason she couldn’t get pregnant and have a child.”

Near the end of the surgery, the defendant implanted a prelude peritoneal membrane, also known as a Gore-Tex adhesion barrier, to prevent adhesions from forming at the surgical incision site where the fibroid was removed. The defendant used non-absorbable sutures when implanting the Gore-Tex barrier, in order to keep it in place permanently. The use of the Gore-Tex barrier was documented in the defendant’s operative note for the procedure, as well as in the perioperative record of the procedure. The defendant testified that he used the implant to prevent adhesion formation at the incision site and increase the plaintiff’s fertility and chance of carrying a child to term.

On February 21, 2017, another surgeon performed an exploratory laparotomy with adhesiolysis, evaluating and draining the plaintiff’s pelvic mass. During this procedure, the surgeon found and removed the Gore-Tex implant that had been placed by the defendant surgeon almost ten years prior. At the time, the surgeon did not know what the object was, and initially thought it could be a sheet of plastic. After lab analysis, it was later discovered to be the Gore-Tex implant.

On September 21, 2017, the plaintiff filed suit against Wake Forest University Baptist Medical Center, North Carolina Baptist Hospital, Wake Forest University Health Sciences, and Defendant Yalcinkaya (the original surgeon), alleging that the Gore-Tex barrier implanted by Defendant Yalcinkaya caused her infertility. The defendants moved for summary judgment on the grounds that the pleadings, written discovery, depositions, and affidavits showed no genuine issue of material fact on her fraud, medical malpractice, or res ipsa loquitor claims, which the trial court granted. The plaintiff then appealed.

North Carolina Appellate Court Opinion

The North Carolina Appellate Court held that that the evidence fails to support a case of either actual or constructive fraud, and therefore affirmed the trial court’s grant of summary judgment dismissing the fraudulent concealment claim. The North Carolina Appellate Court based its holding on the fact that Defendant Yalcinkaya’s operative note reflects that, during the plaintiff’s procedure, he placed a Gore-Tex barrier over a uterine incision and sutured said barrier to her “uterine serosa”; Defendant Yalcinkaya’s post-operative record provides the exact serial, lot, and model number of the Gore-Tex barrier that was implanted during the plaintiff’s surgery; Defendant Yalcinkaya’s testimony that he implanted the Gore-Tex barrier in the plaintiff with the intention that it remain in her body permanently; and, Defendant Yalcinkaya specifically noted in the plaintiff’s chart that her fertility prognosis was guarded even with the assistance of IVF.

The North Carolina Appellate Court stated that the plaintiff’s claim for breach of fiduciary duty is necessarily barred unless it rises to the level of constructive fraud because the plaintiff’s suit was not filed until over nine years after Defendant Yalcinkaya’s last act. There was no evidence that the defendant sought to benefit himself in the transaction (Defendant Yalcinkaya testified that there were no factors about the plaintiff’s case or procedure that would enhance his reputation or give him any possible benefit). Res ipsa loquitor cannot apply because a layperson, without the assistance of expert testimony, could not infer negligence from the facts of this case based on common knowledge and ordinary human experience (Plaintiff’s procedure involved the surgical placement of a Gore-Tex adhesion barrier, the proper use of which is outside the common knowledge, experience, and sense of a layperson). Thus, without expert testimony, a layperson would lack a basis to determine whether the plaintiff’s injury was one that would not normally occur in the  absence of negligence or was an inherent risk of the procedure and use of this surgical bandage.

The North Carolina Appellate Court held: “the 10-year statute of limitations has not been applied in a case such as this one, where a medical implant had been purposefully placed and left in a plaintiff’s body during surgery as part of a medical treatment.” (N.C. Gen. Stat. § 1-15(c) (2021): “where damages are sought by reason of a foreign object, which has no therapeutic or diagnostic purpose or effect, having been left in the body, a person seeking damages for malpractice may commence an action therefor within one year after discovery thereof as hereinabove provided, but in no event may the action be commenced more than 10 years from the last act of the defendant giving rise to the cause of action”). The North Carolina Appellate Court stated: “For statutory construction and public policy reasons, and because Defendant Yalcinkaya implanted the Gore-Tex barrier intending that it be permanently implanted, we decline to hold that a purposeful medical implant that initially serves a therapeutic purpose but potentially later has a non-therapeutic effect requires application of the 10-year statute of limitations period for foreign objects.”

Source Bryant v. Wake Forest University Baptist Medical Center, 2022-NCCOA-89.

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