In malpractice cases that involve the occurrence of a known complication during a procedure, the issues usually raised are informed consent for the procedure and the timely recognition and appropriate treatment of the complication.
|Dawn Collins, JD||Ms. Collins|
An 80-year-old Maryland woman underwent a nephroureterectomy in 2007. The procedure removed the renal pelvis, kidney, and entire ureter, along with the bladder cuff. It was performed based on a diagnosis of transitional cell carcinoma. The urologist had treated the patient for 10 years and treated the cancer conservatively.
After surgery, the patient developed an infection due to a perforated bowel. She died from the infection about 3 weeks after the surgery.
In a lawsuit filed on her behalf, the allegation was made that the urologist was negligent in perforating the bowel. The physician argued that the patient had suffered a delayed perforation due to a thermal injury and that bowel perforation is a known risk of this procedure. A defense verdict was returned.
An 80-year-old Virginia woman was referred to a surgeon in 2010 after cecal cancer was found during a colonoscopy. During her initial visit, the physician discussed staging and treatment for colon cancer, including the need for laparoscopic resection as an initial mandatory treatment as well as the risks and benefits of the surgery.
A laparoscopic right colectomy was performed with a repair of an umbilical hernia. The pathology showed a moderately differentiated adenocarcinoma stage 2, and chemotherapy was not advised due to her age. She went to an oncologist almost a month after surgery and reported some abdominal pain. The oncologist ordered a computed tomography scan to evaluate the patient for metastatic disease. The CT showed evidence of moderate hydronephrosis of the right kidney and ultrasound evaluation was recommended. The ultrasound revealed persistent moderate right and mild left hydroureteronephrosis.
The surgeon was not made aware of these findings for a couple of weeks, but he then ordered a repeat CT, which revealed a high-grade right renal obstruction with proximal right hydroureter with suggestion of adjacent urinomas. The report stated that the possibility of injury to the right ureter should be considered. He immediately referred the patient to a urologist.
The urologist recommended a cystoscopy and retrograde pyelogram with a possible stent placement for the next day. The patient refused the procedure at that time, but ultimately had an unsuccessful stent placement attempt and required a nephrostomy. She was eventually diagnosed with right ureteral injury and given some options, but chose to keep the nephrostomy.
The woman sued the original surgeon, alleging that he failed to provide informed consent and failed to obtain a preoperative staging CT, which would have shown where the ureter was in relation to the tumor and other organs. The patient argued that this would have allowed the surgeon to better protect the right ureter during the operation. She claimed that the right ureter should have been visualized during surgery and/or the procedure should have been converted from a laparoscopic to an open procedure. It was also alleged that the physician was negligent in failing to diagnose the ureteral injury in a timely fashion.
The surgeon denied any negligence and claimed that a preoperative CT would not necessarily have shown the right ureter and that visualization of the ureter preoperatively was not required. He maintained that the patient had suffered a thermal injury from heat transference from the surgical implements used, which is a known complication of the procedure and happens over time. He also claimed that the patient could undergo surgery, which would eliminate the need for the nephrostomy. A defense verdict was returned.
LEGAL PERSPECTIVE: In malpractice cases that involve the occurrence of a known complication during a procedure, the issues usually raised are informed consent for the procedure and the timely recognition and appropriate treatment of the complication. Both of these cases involve a known complication and make the claim that the perforation was caused by a thermal injury from heat transference during surgery. This makes the timely recognition of the perforation somewhat problematic, as this may not be recognizable in the operating room or shortly thereafter.
In the first case, the exact treatment of the perforation is not reported, but even though the patient eventually died, a defense verdict was returned. In the second case, time of recognition seems lengthy. The patient did not seek care for almost a month, but this case also resulted in a defense verdict. Many patients sue over known complications to a procedure, but if there is documentation of an informed consent discussion as well as the recognition and appropriate management, these claims can be successfully defended.UT
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