By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola
Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services (2004-2013)
California Hospital Medical Center
David Vassalli, 2016 JD Candidate
Pepperdine University School of Law
News: In 2011, a 51-year-old woman went to a hospital for a hysterectomy. An obstetrician who works at the hospital operated. The routine surgery went seemingly well, and the woman remained in the hospital for observation. On the fifth day of her postoperative stay, she developed a worsening infection in her abdomen. She was transferred to the Intensive Care Unit for her abdominal infection. The infection worsened over the following days. On the woman’s 10th postop day at the hospital, she underwent surgery to address the infection. A different surgeon at the hospital performed the procedure to clean out the infection site. It was discovered during the procedure that the woman’s intestines had been damaged by the infection. As a result of the damage the infection caused, the surgeon performed a colostomy. The woman used the colostomy bag for seven months and had to undergo two more surgeries to treat the infection. The woman filed a malpractice action against the obstetrician who performed the hysterectomy and the hospital that employed him. The woman alleged that the obstetrician, and the hospital as his employer, were negligent in failing to diagnose and treat lacerations to the bowel that occurred during the hysterectomy he performed, which caused the infection, damage to the intestines, and the need for more surgeries and the use of a colostomy bag. The obstetrician denied he committed negligence. During the trial, an expert surgeon called by the women’s attorney testified that the standard of care when performing a hysterectomy is to inspect the surgery site for any lacerations made during the surgery and that the obstetrician failed to do so here. With this in mind, the jury sided with the woman and ordered that the hospital pay her an award of $1.5 million. The award consisted of $800,000 for future pain and suffering, $700,000 for past pain and suffering, and $20,000 in lost wages.
Background: A woman went to the hospital for a hysterectomy. The surgery was performed in April 2011 by an obstetrician at the hospital. There were no known complications during the surgery, and the woman was to remain in the hospital while she recovered. However, experts and medical records at trial later showed that the women’s bowel, located above the uterus that was removed during her hysterectomy, was cut. Five days after the surgery and while still at the hospital, the woman developed a worsening infection in her abdominal area. She was transferred to the Intensive Care Unit, and the infection continued to worsen in the following days.
Ten days after the hysterectomy, the woman’s abdominal infection became severe, and another surgery was ordered to clean it out. A different surgeon than the one who performed the hysterectomy performed the procedure, which took place at the same hospital. During the procedure, the surgeon discovered that the woman’s intestines had been damaged by the infection. This damage required the surgeon to perform a colostomy so that the woman’s waste would not pass through the infected area. Two more surgeries were required to treat her infection.
The woman filed a malpractice lawsuit against the obstetrician who performed the hysterectomy. The hospital also was named as a defendant because the hospital employed the obstetrician. The woman alleged that the obstetrician negligently failed to diagnose and treat lacerations in her bowel that occurred during the hysterectomy he performed and that these lacerations caused the infection, the subsequent damage to her intestines, and the need to undergo two more surgeries to treat the infection as well as the need for a colostomy bag for seven months after the surgery. The woman’s attorney called expert surgeons to testify during the trial, and the experts testified that the obstetrician had a duty to carefully inspect the surgery site for any lacerations. It was further declared that the obstetrician failed to perform this inspection before closing the surgery site, which caused the infection and led to the subsequent damages the woman suffered. The jury found in favor of the woman and held the hospital liable for the $1.5 million verdict, which consisted of $800,000 for future pain and suffering, $700,000 for past pain and suffering, and $20,000 in lost wages.
What this means to you: This case is an example of an expert establishing the standard of care that physicians are expected to follow during their practice of medicine. The attorney of the former patient will commonly use experts to explain the standard of care that the physician has a duty to follow, and then the jury determines whether the physician breached that duty and how much damage that breach caused. Prudent healthcare practitioners should be aware of the standards they are expected to follow when administering care. The damage in this case came from a bowel injury, which is a relatively common source of medical malpractice litigation. Experts at trial testified that the standard that is to be followed when performing a hysterectomy is to closely examine the bowel and surrounding area before closing the operative site. Additional standards that have been recognized for operating near the bowel call for an examination of the bowel to ensure it has not been lacerated, perforated, or otherwise affected by a nearby surgery. If the bowel has been damaged, infection is a common symptom, and physicians should monitor the patient for signs of infection. As this case shows, there are acceptable standards of care with which physicians have a legal duty to comply, and failure to do so can lead to liability. Practitioners need to be aware of the standards guiding their areas of practice and should take steps that demonstrate and document that the practitioners complied with that standard when administering healthcare. For example, when a surgeon dictates the operative report, he or she should use this opportunity to describe how actions taken meet the standard of care. Describing an inspection of the operative area, even if no adverse finding is seen, may protect the practitioner from future liability, even if something is missed. Due diligence, when documented, combined with documented informed consent of the common risks such as a perforation or laceration of a nearby organ, can mitigate damages.
This case also illustrates how the postoperative care a patient receives can lead to liability. While it was negligent not to closely investigate the woman’s bowel when operating near it, the damages the woman suffered occurred in the following 10 days. It should be noted that medical malpractice jury awards are based on (and should be limited to) the damages the patient suffered by the harm that was negligently caused. As such, mitigating the harm a patient suffers following a negligent act is an important way to reduce the amount of financial liability a physician or a hospital ultimately will face. In this case, the damage the woman suffered was primarily caused by the infection that hospital staff did not clean out until five days after learning the woman was suffering from an infection in the area on which other hospital staff recently had operated. Had the woman’s infection been adequately addressed earlier, the damages she suffered would have been further mitigated, and the hospital would have incurred less financial liability for the incident.
Similarly, had the infection gone wholly untreated, the damages suffered by the patient likely would have been significantly greater. As is illustrated by the financial liability the hospital faces being directly related to the damages a patient suffers, addressing complications and health concerns of patients who already have received care at the healthcare facility in an expedient and effective manner can greatly reduce the amount of financial liability the healthcare facility will face for a past act of negligence.
Schenectady County Supreme Court, New York. Case No 2013-762 (March 2, 2016).