Risa Kirshblum

The plaintiff underwent a laparoscopic-assisted vaginal hysterectomy performed by the defendant gynecologist.

Following the surgery, the plaintiff experienced incontinence and was diagnosed with a vesicovaginal fistula caused by two sutures inadvertently placed in her bladder.

The parties agreed on damages prior to trial, leaving only the issue of liability.

The court found that the defendant failed to adequately mobilize the bladder during the procedure, leading to the inadvertent suturing.

The court concluded that the placement of the sutures was the result of negligence rather than non-negligent surgical misadventure, and granted judgment for the plaintiff.

Following a successful motion compelling answers to undertakings and refusals from discovery, the defendant sought costs on a substantial indemnity basis.

The court considered the factors under Rule 57.01(1) of the Rules of Civil Procedure, including the conduct of counsel and the proportionality of the costs sought.

The court criticized the responding party’s failure to comply with undertakings, delays in responding, and counsel’s conduct during the motion.

Although the moving party sought substantial indemnity costs exceeding $11,000, the court reduced the award to partial indemnity in light of proportionality and the plaintiff’s financial circumstances.

Costs were fixed at $8,728.22 payable to the defendant.