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?