Background
Doris Griffin Land was diagnosed with a high-grade squamous intraepithelial lesion in early 2020, which was at high risk of turning into cervical cancer. Mrs. Land’s health care providers ultimately determined that a total vaginal hysterectomy (“TVH”) was necessary. On June 29, 2020, Defendant Dr. Whitley, assisted by resident-in-training Dr. Faiz, performed a TVH on Mrs. Land at Vidant SurgiCenter.
Dr. Whitley noted in the operative notes that due to Mrs. Land’s anatomy she had difficulty during the procedure. Mrs. Land’s long cervix and a uterine fibroid obscured the left cornual region of her uterus. Despite these complications, Dr.
Whitley did not convert the vaginal hysterectomy to an abdominal or laparoscopic procedure, alternative surgical methods that would have allowed better visualization of Mrs. Land’s uterus. Consequently, a three-inch piece of uterine tissue remained undetected in her abdominal cavity following the TVH surgery.
On July 26, 2020, Dr. McDonald performed an initial laparoscopic exploration of her abdomen followed by emergency
surgery after he detected an abscess in her pelvic cavity. Dr. McDonald converted the procedure to a laparotomy, cut open Mrs. Land’s abdomen, removed the infected tissue and explored her pelvic cavity. Dr. Coiner, an OB/GYN physician, was called in to assist with the surgery. The physicians found the infected remnant uterine tissue in Mrs. Land’s abdomen.
Plaintiffs’ susbequently filed North Carolina medical malpractice complaint alleged Dr. Whitley violated the duty owed to Mrs. Land by (1) failing to safely and fully perform a TVH; (2) failing to convert the TVH procedure to an open hysterectomy when she encountered complications during the surgery; (3) failing to request the assistance of a second surgeon to assist her when the TVH procedure proved to be difficult; (4) failing to see all of the uterine material that should have been discovered and removed during the TVH; (5) failing to remove all pieces of Mrs. Land’s uterus during
the TVH and leaving a portion of her uterus in her pelvic cavity, which later became infected; (6) failing to properly evaluate and examine Mrs. Land at the two-week postoperative visit to identify the infection caused by the remnant of uterus; and (7) other negligence as may be determined through discovery and trial.
In its Opinion filed on February 6, 2024, the North Carolina Court of Appeals stated: “In reviewing Plaintiffs’ complaint on its face and the record evidence before us, we note Plaintiffs concedes Defendants have satisfied the first element of the statutory immunity, “as Defendants were providing health care services during the time of the COVID-19 emergency declaration.” The second element of the statute requires Defendants to show Mrs. Land’s care was affected, directly or indirectly, by the COVID-19 pandemic. In their affidavits, Dr. Whitley, Dr. Lindbeck, and both the Medical Director and Chief of Staff at ECU Health SurgiCenter, provide detailed information regarding how the pandemic affected health care facilities and patient care in general. However, Defendants’ affidavits fail to establish a causal link between the impact of COVID-19 and Mrs. Land’s care or treatment. … While Dr. Whitley’s sworn affidavit provides reasoning for why the TVH procedure was the first option for the hysterectomy procedure, it is devoid of any COVID-19 related explanation of why the TVH procedure was not properly completed, why another surgeon was not consulted after complications arose, why another surgical procedure could not be utilized on Mrs. Land after complications in the surgery arose, and why a remnant of Mrs. Land’s uterus was left in her body. Furthermore, neither Dr. Whitley’s nor Dr. Lindbeck’s affidavits offered evidence as to how Mrs. Land’s follow-up care was directly or indirectly impacted by the pandemic. Neither affidavit disputes Plaintiffs’ contention based upon respondeat superior that Dr. Whitley and the other Defendants failed “to properly evaluate and examine Mrs. Land at the two-week postoperative visit to identify the festering infection caused by the infected retained remnant of uterus.” The uncontroverted allegations in Plaintiffs’ complaint have not been countered by the evidence put forth by Defendants.”
“Additionally, the affidavits presented by Defendants do not address the last requirement of N.C. Gen. Stat. § 90-21.133(a), that the health care provider must have acted in good faith in providing health care treatment and services. N.C. Gen. Stat. § 90-21.133(a). While Defendants’ affidavits discuss how the challenges of COVID-19 impacted their provision of health care to patients in general, there is no assertion Defendants provided treatment and care to Mrs. Land in good faith.”
The Court of Appeals of North Carolina held: “Because Plaintiffs’ complaint, liberally construed, sufficiently alleges claims not barred by N.C. Gen. Stat. § 90-21.133(a), Defendants are not entitled to dismissal of Plaintiffs’ gross negligence claims at this stage of litigation.”
Source Land v. Whitley, M.D., No. COA 23-250.
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