Over the years, I have seen many lawsuits where a specific operation ended in a complication.
Two come to mind.
An ob-gyn performs a hysterectomy or uterine repair and a ureter is sutured.
A general surgeon performs a laparoscopic cholecystectomy and the common bile duct is clipped.
Some of these cases turn into lawsuits.
Some of those lawsuits result in a win for the plaintiff. Others result in a verdict for the defense.
Why are some cases treated as an unexpected complication? Why are others treated as a violation of the standard of care resulting in a payout?
The short answer is I don’t know. But one recent case illustrates factors that press the scale in one direction or another.
A patient in Mississippi underwent a C-section. During the procedure, the uterus was lacerated. No surprise – it was a C-section. During the repair, the surgeon sutured the left ureter.
Post-op, the surgeon ordered an IV pyelogram to analyze urine flow. The study demonstrated partial obstruction of flow from the left kidney.
A urologist was consulted. He performed a cystectomy and examined the ureter. He confirmed the ureter was sutured. He could not alleviate the obstruction. So he placed a nephrostomy tube to bypass the obstruction externally. The tube was removed after 7 months. The woman found another urologist who inserted stents into the blocked ureter.
The woman sued. She claimed the surgeon did not leave her on the table long enough to look for and treat any discovered blockage. During deposition, the surgeon denied suturing the left ureter, a position he propelled until opening day at trial.
At trial, the ob-gyn’s attorney stated for the first time that the woman’s blood loss was a factor in terminating the surgery quickly. It was too dangerous to take the time to investigate any problem with the ureter. Further, the ob-gyn was concerned the tissue was friable and removing any suture might create even more blood loss.
The opposing expert opined that the ob-gyn over-estimated the amount of blood loss based on post-op hemoglobin levels.
Regardless, the patient’s attorney moved to exclude the story about concerns over blood loss. Why? The surgeon had never brought it up until trial. The court agreed. And a jury rendered a verdict against the ob-gyn for $484,141. Robinson v. Corr, 2016 WL 1459120 (Miss., April 14, 2016)
This patient had a complication that took months to resolve. Further, the ob-gyn changed the story over time. Those two factors probably did not help his legal outcome.
Here’s what I have learned over time.
- If a patient clearly understands upfront the risk of likely complications, they are less likely to sue and even less likely to win. This mean real informed consent. Not a 20 page document listing every potential complication under the sun that the patient must read in the holding area in 10 minutes. The more educated the patient is before surgery, the greater the likelihood the patient will be a collaborative partner (as opposed to an adversary) if there is a complication.
- Be honest, open, and transparent. If you have a complication, don’t sugarcoat it after the procedure. Do what you can to get it diagnosed and fixed quickly. The longer it takes to make the diagnosis, the more likely the patient will sue. This is doubly true if the patient had subjective complaints and they were ‘ignored.” If a patient has to find another surgeon to get the problem fixed (a surgeon you did not refer the patient to), you will not have any control over the narrative. Gasoline might be thrown into the fire. Or that surgeon may be the calm voice of reason. Regardless, you will not have control.
- If the case is harder than usual (scarring, adhesions, morbid obesity, atypical anatomy), the operative report must reflect that. If the report makes the case sounds humdrum and routine, the patient will appropriately ask why there was a complication. Be careful about using your typical op-report template if you run into problems.
- Detail in the operative report cuts both ways. If you know in advance the patient is at higher risk for a complication, then the question will be whether you have the background, training, and experience to do such a case. Or should the patient be transferred to an institution better suited to handle such challenges. Be honest with yourself before you cut.
Complications in the operating room are inevitable. But, they do not have to lead to a courtroom. You, the surgeon, do have reasonable amount of control over the outcome.
So, is a suture around the ureter malpractice? What about a clip on the common bile duct?
It depends.
The malpractice was by the urologist: patient needed early return to OR for dligation or, at most, six week return to OR for reimplant. Seven months with a nephrostomy is just cruel
I’ve written about this before, but this is a good time to repeat it: the term, “informed consent,” rings strangely to me. Someone ~consents~ to something…that someone else ~wants~ to do: “Hey, Mrs. Smith, I want to take out your gall bladder. You good with that?” [Or: “I’d like to take you to bed–are you good with that?” That’s requesting consent!]
An informed ~request,~ on the other hand is different: “Mrs. Smith, we can treat you conservatively and see how well you do on a modified low fat diet (after an appropriate course of antibiotics to take care of your cholecystitis), or we can do a definitive operation tomorrow and remove your gall bladder tomorrow. If the diet works, you might be able to keep the GB indefinitely, but the risk is that of whether you will get a gb attack again. The upside of conservative treatment is that, well, it’s conservative and there’s no operative risk with it. What’s your pleasure?”
I’ve just about always done the latter. Only rarely did people choose to try things conservatively–I was treating aneurysms and AVMs, not bad gall bladders–but when they did, I was always supportive in the extreme and insisted that they check in with me periodically to let me know how they were faring. From time to time, they’d tell me that they were having problems and wanted to proceed with definitive surgery.
I always touched on four points when I informed people, and I documented that I had done so: I discussed “the techniques, indications, alternatives–including no surgery, and risks of procedure, including possibilities of stroke and hemorrhage with resultant weakness, numbness, aphasia, and death. He wishes us to proceed.” Note: not “consents to the procedure”: WISHES US TO PROCEED.
I’ve been in court as a defendant in a med mal suit exactly once, and there was a clean defense verdict with denied plaintiff’s appeals at both levels tried. Doesn’t always work, but it’s done well for me. I’m not sure why more people don’t do it this way.
In response to Joseph Horton, physicians who give their patients all the information they need for an informed decision… a decision that they make, not one the physician makes and they agree with…. are the physicians I believe are practicing good medicine. The ones who say “I need to take your gall bladder out.” with very little information to back up the decision are treading on thin ice. I know both. The latter doesn’t get very many referrals from the physicians who fit the former group. And for good reason. They want what’s best for their patients and they don’t want to be involved in legal problems.
The OB in the original story did himself in when he changed his story and his documentation didn’t match. In addition to informing the patient, physicians need to inform the medical records. Their knowledge of the case needs to be documented to protect everyone involved. The good, the bad AND the ugly. But sadly in this day, not everyone understands that.
We all get complications and they are inevitable – early recognition and intervention usually leads to a better outcome for your patient.
Suturing a ureter or clipping a CBD is NOT malpractice.
Had a pt. recently who was extubated deep, and the anesthesiologist noted laryngospasm. I was in the room writing chart notes. He became combative and SaO2 would not remain above 90 without supplemental O2. The anesthesiologist promptly administered furosemide, and the patient’s negative pressure pulmonary edema was transient, lasting 8 hours, all with a happy ending. Ambulance was called to the surgicenter, and the anesthesiologist and I independently visited the patient in the ER. Family and patient were happy we were there. God is good.
I do not believe these complications are, per se, malpractice, because even good surgeons in good faith will eventually, in my opinion, have such a complication. I also do not agree that every patient can be optimally educated pre-op. If we are to change these problems in a way that you appear to espouse the professional societies should create a “standard” op report and a “standard” consent paper…may I suggest that as things stand now, the surgeon, is, in effect, the object of legal “assault” on a constant basis? I agree this is a controversial proposal but is a starting point for further discussion. One advantage of creating such a “standard” would be the ability to research the result of its application and to determine if there are improvements that can be suggested to the “system”. For example, I believe that “subtotal cholecystectomy” is an option whenever common duct cannot be defined however, it is very difficult to test this hypothesis as I am not sure we have ever established what a “standard” cholecystectomy is?