News: An adult female went into the hospital for a consultation regarding surgery on her bowel. Upon examination and confirmation the woman was suffering from a leaky bowel, the surgeon recommended a laparoscopic ileocecectomy, which is a less invasive form of surgery using small incisions, special instruments, and cameras. One month later, the surgeon performed the procedure with what appeared to be no complications. However, the woman began suffering extreme abdominal pain and high fever the day after the procedure. A physician at the hospital where the procedure took place suggested a CT scan if the condition continued and informed the surgeon of this suggestion. The woman’s symptoms continued, and blood tests were ordered. The initial lab results indicated an infection. The CT scan results the subsequent day affirmed that the woman was suffering from an abdominal infection with sepsis. The surgeon performed an additional corrective procedure, but the woman already was in septic shock. This incident, according to court documents, led the woman to have serious injuries, great pain, suffering, disability and disfigurement, and future medical costs. The woman sued the hospital where the surgeries occurred for the conduct of its staff, specifically the failure to diagnose the infection earlier and failure to inform her that the surgeon was inexperienced with these types of procedures. The hospital was ordered to pay the woman more than $4.8 million for the staff’s negligence.
Background: In 2010, a female patient with a history of bowel problems sought treatment from a surgeon. The surgeon recommended laparoscopic ileocecectomy, a procedure designed to lead to speedy recoveries due to small incisions and special instruments. The surgery was set and performed one month later. The woman was monitored that day and had no fever, and her pain was being managed by pain medication. The next day the woman reported a score of 10 out of a possible 10 for pain in her abdomen and a fever of 100.8 F. The attending physician at the time suggested close monitoring and CT scan if the symptoms continued. The physician instructed the surgeon of the situation. The next day the woman’s temperature increased to 102.56 F, and her pain had not subsided. Another physician in the hospital evaluated her and also recommended a CT scan but did not order it. The following two days yielded the same results, physicians noting the pain in the abdomen and a fever and recommending, but not ordering, a CT scan. During this time, the woman was not given any antibiotics to fight a possible infection.
Three days after a CT scan initially was requested and the woman had extreme pain and high temperature, blood work was ordered and revealed the infectious process had begun. It wasn’t until the next day, four days after the initial CT scan was requested, that the woman was given a CT scan and antibiotics to fight the infection. Court documents allege that the woman was “considered” for a CT scan six times and had a temperature 103.46 F before being given the CT scan. The CT scan revealed fluid in the pelvis area and abscess, both of which are signs of bowel perforation.
Following the CT scan results, the surgeon performed surgery on her to correct the situation. During the surgery, a diverting proximal ileostomy, the surgeon found a large amount of bile in the abdominal area, a pelvic abscess, and a leaking anastomosis at the staple line from the previous surgery. The woman’s condition led to abdominal infection and septic shock, which required numerous hospital visits and caused a regular bowel leak that caused pain for nearly a year. One year later, the woman had the situation surgically corrected and sued the hospital for her injuries.
The woman named the hospital as the defendant in the lawsuit. She sued the hospital under the legal theory of respondeat superior, which holds employers liable for the conduct of their employees in states where physicians are routinely hospital employees. The staff’s negligence was primarily the surgeon not recognizing the early signs of infection, not ordering the CT scan called for in his plan, failing to administer antibiotics, botching the first surgery, and failing to inform the patient that the surgeon was inexperienced at performing these types of surgeries.
The hospital maintained its staff was not negligent in any regard, did not fail to adequately inform the woman, and obtained informed consent from her regarding the surgery.
The jury agreed with the woman and awarded her more than $4 million against the hospital. The breakdown of the verdict was $2.75 million for past and future pain and suffering, more than $909,000 for past medical care, $895,000 for lost income, and $250,000 for disfigurement.
What this means to you: The primary lesson to be learned from this case is physicians should always follow through on their own recommendations. A physician or hospital does not face liability simply for an injury or adverse development. Rather, the injury typically has to be connected to an act of negligence that is the cause of the injury or adverse development. As such, when physicians put their recommendations in writing, fail to follow through on their own recommendation, and that failure causes damages to patients, the attorneys representing the patients easily can establish that the standard of care was negligent because the physicians “neglected” to follow up on their own recommended standard. Such was the case here, as the surgeon failed to order the CT scan when the woman’s condition persisted, even though his recommendation called for a CT scan if the condition persisted. Establishing he was negligent was an easy task because the woman’s attorney was able to point to the documented plan the surgeon failed to follow. Moving forward, it is prudent for a physician to follow up on their recommendations or physically make a notation in the patient’s file as to why the follow-up treatment was not the chosen course of action.
This situation is unfortunately recurring in hospitals today. The primary physician is usually managing the case with consultants, such as surgeons, being called upon by the primary physician to handle situations for which they are qualified to treat and the primary physician is not. What often happens is that the consultant, the surgeon in this case, writes his or her recommendations in the patient’s progress notes, and these are overlooked by the attending physician. Leaks at the anastomoses sites are not uncommon, and patients must be monitored closely for this problem during the first 24-72 hours postoperatively. Nurses also are aware of this risk and, as hospital staff, have a duty to inform the attending and the surgeon of the patient’s fever elevation and intractable pain.
This case also raises the issue of informed consent. With the emergence of new medical technology rapidly growing, surgeons and physicians might be performing a procedure they have yet to perform on a patient. There is always a first time. Physicians in this situation should disclose their level of expertise, or lack thereof, to their patients. Moreover, before the surgeon ever goes to the operating room, the organized medical staff members of the hospital have a duty, through peer review, to evaluate the surgeon’s qualifications. If the physician has not been proctored appropriately and to the pre-determined level of quality, the hospital’s medical staff should require additional training before the surgery takes place. If an injury or adverse event occurs as a result of a surgery and the patients were unaware the physicians lacked experience with the performed procedure, patients can claim they lacked the requisite level of information to make informed decisions. Specifically, the patients can allege that knowledge regarding the surgeons’ lack of experience would have led to the patients not undergoing surgery. In this case, the lack of disclosure with respect to the surgeon’s inexperience regarding the performed procedure provided the basis for the woman’s successful claim that she was not adequately informed of information that would have altered her decision to have the surgery that caused her injuries. Reasonable patients certainly regard the level of expertise of their physicians as a relevant factor that influences their decision to move forward with a proposed course of action, so prudent physicians should disclose their level of expertise regarding that procedure as well as associated risks and alternatives.
Illinois Circuit Court, Cook County, Case Number 2011-L005165 (Dec. 17, 2014).