Kevin Giordano, Esq. and John O’Grady, MD, examine two laparoscopic hysterectomies that resulted in occult ureteric injury.Is it possible that the same event might be considered the standard of practice in one case but not the other?
Physicians performing laparoscopic surgery recognize that if they do enough procedures, they will eventually encounter complications. This is because all surgical procedures involve an inherent risk. Physicians also recognize that when performing an exploratory laparoscopy, some pathology may not be visualized at the time the procedure is performed. In this two-part series, John O’Grady, MD, and Kevin Giordano, Esq., explore whether the concept of an “accepted complication”-or the identified limitations of medical science-shields a physician from malpractice claims. Further, is a malpractice claim ever justified as the legal penalty for an observed complication, regardless of cause?
John O’Grady, MD: Is it possible that the same event in one case might be considered the standard of practice but in another might not? Let’s consider two cases involving a laparoscopic hysterectomy. In each case there is an occult ureteric injury. In one case the surgery was required by clinical indications such as severe pain or the suspicion of internal bleeding. While, in the other circumstance, surgery is performed electively for benign uterine disease. But, in this second case there were prior uterine surgeries and thus multiple adhesions resulting in a long and tedious dissection. In this latter case there was aberrant anatomy and difficult visualization due to scarring. How is the standard of care defined in these cases when there are what we might term extenuating circumstances?
Kevin Giordano, Esq.: Again, what we are describing is a recognized complication and that is the defense. The plaintiff’s lawyer points out that just because the injury that occurred is a recognized risk of the procedure, it does not mean in every instance it was an inevitable complication. They will suggest that sometimes complications do happen because of malpractice. In other words, take the example of shoulder dystocia for instance. We know that injury can occur to the infant that was unavoidable. A plaintiff’s lawyer will concede that, but counter with the response that some injuries occur because of excessive traction or might be ascribed to the use of poor technique (e.g., fundal pressure). So with this argument before them, how is a jury to parse this out?
Perhaps, in the first case the doctor truly did not do anything wrong; He was the person in the room with the most experience in performing the procedure and he clearly is knowledgeable and experienced in doing so. According to his testimony, he describes performing the surgery according to good and accepted practice and did a thorough inspection prior to completing the procedure. His operative note, dictated before the diagnosis of any complication, describes the procedure in detail and there are no inconsistencies. Follow up care is timely and the surgeon maintains an adequate index of suspicion for possible surgical complications and so the diagnosis is made without substantial delay. There is a reasonable likelihood that the jury will determine that the injury was not the result of negligence and all the factors tend to support this. In the second case let’s assume that it is all a bit murkier-the operative note was not dictated in a timely manner; perhaps instead it was dictated after the complication was identified. Furthermore, inconsistencies were noted between the operative note and the doctor’s testimony (or perhaps a pre-printed operative note was used); and there is concern that the physician was not attentive to the early clinical manifestations of injury and thought the patient was exaggerating. In this particular scenario, a jury may find that it seems more likely to have occurred due to poor surgical technique and look unfavorably on the physician.
John O’Grady, MD: We may confidently predict that the latter situation would not play very well in court!
Kevin Giordano, Esq.: No. But we should not minimize how difficult it may be for a juror in a setting where an injury that is a recognized complication occurs to determine when it is, or isn’t, due to medical negligence. So you defend the case, trying to point out that the doctor did not rush into the surgical procedure and essentially had exhausted medical therapy; the doctor has done a lot of laparoscopic procedures and was experienced at the time of procedure; the risks were explained and the consent discussion was documented. Further, the operative note was dictated in a timely manner and the dictation describes how the procedure was performed. Thus, given this background, there is every confidence that when the surgeon testifies that there is evidence of adherence to good surgical technique. But, in another case, it might not square up so well that the doctor adhered to proper surgical techniques despite what the physician says in his or her testimony. Ultimately, in this setting it may be easier for the physician who has actually been careless or negligent to defend himself under the concept of a known risk than it is for a physician who adheres to good practice but has deficient documentation to be found negligent.
John O’Grady, MD: So, when occult injuries are considered, the issue may be less about the occurrence itself and instead it becomes how attentive was the physician to the inevitable but delayed signs and symptoms? Thus, the clinical question becomes: How attentive was the practitioner to the needs of the patient, both in initially diagnosing the problem as well as managing any unanticipated postoperative complications?
Kevin Giordano, Esq.: Correct. I would say that for most cases involving laparoscopic procedures and occult injuries there are allegations that the diagnosis of a postoperative complication was not made in a timely manner. These claims are often the most problematic aspect of the case, not the fact that the injury occurred. The defense, for instance, that a thermal burn is a complication of electric cautery used during the procedure is only strong if the clinical signs of the injury were ignored, thus making the patient’s injury worse.
At the end of the day, proceeding on the basis of good clinical reasoning is always important. It is also important to have discussed the limits of a diagnostic procedure with the patient along with the usual potential risks and complications. Post-operatively, it is necessary to maintain clinical surveillance to diagnose complications. The possibility of an original misdiagnosis, especially if the procedure is an exploration and the true diagnosis was not known preoperatively, must always be considered.