Legal: When a lawsuit revolves around a known surgical risk

July 1, 2008

A patient's bowel is perforated during laparoscopy.

Three case scenarios:

1. Bowel perforationduring laparoscopy

A 60-year-old Michigan woman with a history of numerous pelvic surgeries, including removal of all reproductive organs, continued to complain of abdominal and pelvic pain. To help resolve the problem, her gynecologist performed an exploratory laparoscopic procedure. Unfortunately, the patient's bowel was perforated during the procedure, she developed peritonitis, and an open operation was needed to repair the bowel. She suffered a wound infection, several hernias as a result of the surgical wounds, and required three surgical corrections for the hernias.

The gynecologist claimed it was appropriate to do a laparoscopic procedure and that bowel perforation was a known risk of the operation. He argued that an open surgery would not have reduced the risk of bowel perforation, that the perforation was immediately addressed, and that she had recovered from the injury. A defense verdict was returned.

2. Femoral nerve injuryduring hysterectomy

A 39-year-old California woman was diagnosed with a leiomyomata in the lower uterus in 2005. The tissue in the affected area became necrotic and prolapsed and she underwent surgery to correct it. About a week after the surgery she returned to the hospital with pain and bleeding. A physician who was covering for her gynecologist treated her and recommended a hysterectomy, which he then performed.

After the procedure, the patient began to complain of numbness in the right anterior and lateral thigh. A neurology consultation indicated that the femoral nerve had been damaged. The woman has persistent femoral nerve palsy, which affects her ability to walk, for which she underwent physical therapy and rehabilitation.

The patient sued the surgeon and claimed he had negligently placed a retractor or failed to reposition the retractors after they moved during the procedure.

The physician denied any negligence and maintained that femoral nerve injury is a known risk of pelvic surgery. He also claimed there was no physical basis for any of the patient's ongoing complaints, as she had only suffered from minor sensory and motor palsy in the immediate post-op period. A defense verdict was returned.

3. Death after laparoscopycomplication

An Indiana woman underwent a D&C to remove a small uterine mass. During the procedure, a small perforation in the uterine wall was detected and a subsequent laparoscopy was done to repair the uterine wall. The patient was discharged home with instructions to contact the physician if she experienced any complications.

When she began to deteriorate at home, her husband brought her to the physician's office, where she was sent to the hospital for emergency surgery to repair a bowel perforation. The woman had necrosis in the bowel and septic shock with multiple organ failure and died the following week.

The husband sued the gynecologist and claimed he failed to detect the perforated small bowel during the laparoscopy. The physician argued that a bowel perforation was a known risk of a laparoscopic procedure and she was given instructions to call with any symptoms. Once the patient presented, the complication was recognized and treated expeditiously.

A defense verdict was returned.

Department editor DAWN COLLINS, JD, is an attorney specializing in medical malpractice in Long Beach, CA. She welcomes feedback on this column via e-mail to DawnCF@aol.com
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Legal perspective

When a known complication of a procedureoccurs and results in a lawsuit, the two majorissues are lack of informed consent andrecognition and treatment of the complication. Todefend these cases the documentation mustreflect a timely identification of the complicationand appropriate treatment. While many complicationsoccur without negligence, they all too oftenresult in a malpractice claim. The cases describedwere all successfully defended, but it is unfortunatethey became lawsuits at all.

When a patient is surprised by a complicationor bad outcome, she often assumes somethingmust have gone wrong and blames thecaregivers, and thus sues for negligence whenthe real basis of the charge is the informedconsent process. Improving the informed consentprocess could give patients a better understandingof the risks of treatment and createrealistic expectations for outcomes. That, in turn,would decrease the likelihood of legal action ifresults are less than perfect.

Use concrete examples with numbers for risksand benefits written or graphically illustrated forthe patient, taking into consideration their level ofunderstanding and communication, instead ofusing words like "low risk" or "high probability"where your meaning of low may be different thanthe patient’s concept of low. Giving the patientwritten information that states in writingrisks/benefits and known complications may helpto avoid a surprise result for the patient and theever increasing lawsuits filed due to theoccurrence of known complications.