Tonya Winterholler v. Leonel Zolessi, M.D.

Medical Malpractice - Negligence - For approximately four years, Dr. Zolessi treated Appellant for
tubal pregnancy problems and other obstetric and gynecological
complaints. Treatment culminated in Dr. Zolessi's performance of
Plaintiff's laparoscopic hysterectomy in late March of 1992.
Laparoscopic surgery requires the surgeon to place a laparascope
through the umbilicus and then, through small incisions at
various locations in the abdomen, place two or three surgical
instruments, known individually as a trocar, through which the
surgical tools are manipulated.

The day following surgery, after recovery from the effects of the
anesthesia, Plaintiff experienced severe back pain and discovered
bruising into her flank, abdomen, and left labia. Problems
persisted after her release and, on April 11, 1992, Plaintiff
returned to the emergency room complaining of back pain. At her
next scheduled appointment with Dr. Zolessi on the 13th of April,
Plaintiff sought an explanation as to the bruising and why she
was continuing to experience pain. Dr. Zolessi surmised that the
anesthesia through an epidural procedure may have caused the
post-surgery bleeding.

Plaintiff continued to experience pain and received no
satisfactory answer, as to its cause, from a series of doctors.
Plaintiff eventually consulted Dr. Steven Freedman, a California
board certified obstetrician/gynecologist, in May, 1992. Dr.
Freedman diagnosed her problem as stemming from the severing of
an epigastric artery due to the placement of the trocar during
the laparascopic procedure. Following this diagnosis, Plaintiff
came under the care of Dr. Painter, who arranged an appointment
with another specialist for possible treatment.

In March of 1994, Plaintiff and her family filed a complaint
alleging medical negligence in Dr. Zolessi's pre-surgical,
surgical, and post-surgical care. Essentially, Plaintiff claimed
that she was not given sufficient information about the risks of
the surgery, that Dr. Zolessi was negligent in performing the
surgery and in failing to recognize that the epigastric artery
was severed, and that he failed to provide reasonable post-surgical
treatment. Plaintiff designated three expert witnesses
in April of 1995 - her treating physicians, Dr. Freedman and Dr.
Painter, and another obstetrician/gynecologist, Dr. Woodard. All
were deposed by the defense during discovery. At one point
during Dr. Painter's deposition, Dr. Zolessi's counsel advised
Plaintiff's counsel that three standard of care experts was
excessive.

In May of 1997, Plaintiff took the trial deposition of Dr.
Freedman, as he could not attend the trial in person. On
September 23, 1997, Ms. Winterholler filed a motion for a
continuance of the trial date because of the health problems of
her expert, Dr. Woodard. Dr. Zolessi objected, claiming that Dr.
Woodard's testimony was not necessary since Dr. Freedman and Dr.
Painter were also designated to give opinions on the standard of
care. The district court continued the trial from October of
1997 to June of 1998.

In February, due to Dr. Woodard's failing health, Plaintiff filed
a motion to substitute Dr. Oliphant, another
obstetrician/gynecologist, to take Dr. Woodard's place at trial.
The trial court granted the motion, and Dr. Oliphant's deposition
was taken on April 20, 1998, approximately six weeks before the
trial date. The morning of the deposition, Dr. Oliphant
conducted a physical examination of Appellant. Based upon that
examination, Dr. Oliphant offered his opinion at his deposition
that the placement of the trocar fell below the applicable
standard of care.

Shortly thereafter, Dr. Zolessi filed a motion to strike this
opinion and a motion to limit Ms. Winterholler to one standard of
care expert. A hearing on the pending motions was held on May
20, 1998. On May 21, the trial court issued a decision letter
granting the motion to strike the opinion of Dr. Oliphant
relating to the placement of the trocar and ordering plaintiffs
to choose one standard of care expert. Plaintiff chose Dr.
Oliphant as her standard of care witness; however, he was not
permitted to testify regarding the negligent placement of the
trocar. At trial, the jury heard the testimony of Dr. Painter
and portions of Dr. Freedman's deposition, but Plaintiff was not
permitted to present testimony from these witnesses criticizing
Dr. Zolessi's care.

Defendant's verdict.

Dr. Steven Freedman, obstetrician/gynecologist, California,
Dr. Painter, Obstetrician/gynecologist,
Dr. Woodward, Obstetrician/gynecologist,
Dr. Oliphant, Obstetrician/gynecologist,

Unknown

Reversed in part and remanded by the Supreme Court of Wyoming. See: ___ P.2d ___ (Wyo. 11-4-99). Note: The above date reflects the appellate court decision date, not the original trial date. Reported by kkm.