Ellsworth v. Chan

I respectfully dissent. I would reverse and grant a new trial. Michelle M. Ellsworth (plaintiff) seeks to recover damages for injuries she sustained during a hysterectomy performed by defendant. During the operation, defendant encountered pelvic adhesions. He successfully removed three bands of adhesions and then encountered, upon visualization and palpation, what he determined to be a fourth band of adhesions. Defendant cut what he thought was the fourth band; it was plaintiffs bowel. Defendant immediately called in a general surgeon, who performed a colostomy.

At trial, plaintiffs’ expert…