Sherrer v. Boston Scientific

Dr. Michael Kennelly, an expert in urogynecology based in North Carolina, testifies for the defense concerning a treating physician’s handling of the plaintiff’s chronic pain complaints.

The Expert: Dr. Michael Kennelly, an expert in urogynecology based in North Carolina, testifies for the defense concerning a treating physician’s handling of the plaintiff’s chronic pain complaints.

A Missouri products liability trial was the backdrop for Dr. Michael Kennelly, a urogynecologist from North Carolina, to testify for the defense at trial against two manufacturers over claims that defects in pelvic mesh caused a patient’s chronic pain.

Kennelly attacks the treating doctor’s handling of the plaintiff’s complaints as inadequately addressing, then inappropriately treating her chronic pain.

The expert discusses informed consent and how it was lacking in this case. The patient should know “What you are doing, why you are doing it, what are the goals of therapy, and what are the expectations for the outcome,” including the risks of the surgery, according to the expert. Kennelley explains that the treating physician in this case has an “international practice” and specifically this patient was flying in from China to be treated. As a result, she was seen one time and the evaluation and consent from that visit was used to plan for the surgery over a year later. Unfortunately, Kennelly explains that other sources for the pain that would ordinarily be considered in a differential diagnosis were not considered during that one and only visit to the treating physician. Instead, the surgeon focused on the meshes that had been placed as the primary source of pain, to the exclusion of any other possibilities, and did not attempt to exclude the other possibilities.

The surgery was then postponed for 14 months for reasons unrelated to this problem. The treating surgeon then did a workup over several days’ time when the patient returned to the US. However, the surgeon did not see this patient to discuss the findings of this workup or his intended surgery until the morning of her surgery, just before she went into the OR. The expert sees this lack of communication with the patient and inadequate initial workup of the differential diagnosis as not within the standard of care. Indeed Kennelly believes this is exactly the opposite of how an academic surgeon such as this should be teaching his residents. This would lead to a poor outcome and the failure to recognize that this patient’s pain was related to the fact that she had severe osteoarthritis of the right hip joint whose architecture had deteriorated, not the mesh. Removing the mesh, Kennelly believes, would not help with this problem.

Reviewing the operative report was also problematic, according to Kennelly, both in terms of the labeling of the operation and the actual operation that was done. These two were not consistent. The surgeon claimed to remove a mesh in an area where one had never been placed. He also described a surgical approach that was for a different operation than the one that was actually done. As for removal of the mesh itself, the expert says, “I don’t think it was appropriate.”

In addition, Kennelly concludes he does not see evidence that the patient was having the prolapse problems for which one of the two procedures was done. He believes that the patient came in expecting and wanting the mesh removed, and the doctor complied, without looking at other possibilities for the cause of her pain.

The doctor’s testimony was persuasive, as the jury ruled for the defense.