News: The Illinois Appellate Court upheld a $900,000 jury verdict in a medical malpractice suit for a man’s death caused by a negligently performed gallbladder surgery. The patient’s primary care physician determined the patient had gallbladder disease and referred him to a doctor for a surgical consultation. The doctor accidentally severed the patient’s common bile duct rather than the cystic duct. As a result, the man suffered months of medical complications related to the incident and eventually died. The jury found for the plaintiffs, awarding them $910,742.79 in damages. The hospital appealed the verdict in September 2013, and the appeal was heard by an appellate panel on Dec. 21, 2015. The panel unanimously affirmed the lower court’s decision.
Background: In 2008, a man told his primary care physician on several occasions that he had experienced heartburn, stomach and back pain, nausea, and diarrhea. The doctor determined his symptoms were caused by gallbladder disease and referred him to another doctor for a surgical consultation, at which point it was decided to remove the gallbladder. On Jan. 12, 2009, the man received preoperative clearance and underwent gallbladder surgery at a hospital.
Initially, the doctor began with a laparoscopic procedure, but found a significant amount of inflammation around the gallbladder and converted to an open procedure. After working to dissect the patient’s gallbladder from the surrounding structures, the doctor cut through what he thought was the cystic duct. Unfortunately, the severed structure was the common bile duct. Immediately the doctor called in his colleague, who continued with the dissection until he was able to confirm that the common bile duct had been cut. The doctor then called a hepatobiliary specialist to attempt to repair the severed duct. The gallbladder dissection was completed, and then the hepatobiliary specialist performed a Roux-en-Y reconstruction, a procedure by which the flow of bile is rerouted through a loop of intestine. The entire surgery, including the reconstruction, lasted approximately eight hours.
Following his surgery, the patient suffered from an intermittent bile leak, which required the insertion of two drains. He was initially discharged a week after the surgery, but was readmitted the next day. He spent another month in the hospital before he was briefly admitted to a nursing and rehabilitation facility on Feb. 20. Four days later, he had to be admitted to another hospital. Toward the end of this hospitalization, he became severely septic and passed away on March 19. The doctor completed and signed the death certificate a day or two thereafter, listing “bile duct injury” as “the underlying cause, disease or injury that initiated the events resulting in death last.”
On Dec. 22, 2010, the patient’s wife brought a wrongful death and survival action against the doctor and the hospital. The wife then passed away, and the patient’s daughter resumed the suit as a special administrator of the patient’s estate. The amended complaint alleged that the doctor “[n]egligently and carelessly surgically transected” the common bile duct, “[f]ailed to perform the necessary precautionary methods to ensure a safe gallbladder removal,” and “[f]ailed to call for assistance from a specialist with expertise in biliary surgery” before cutting the common bile duct. The daughter further alleged that her father died “[a]s a direct and proximate result of one or more of the foregoing negligent acts and/or omissions.”
The six-day trial began on Jan. 25, 2013, with testimony from various expert and fact witnesses. One doctor described a four-step process that ensures the common bile duct is not cut in gallbladder surgeries. The jury returned a verdict on Feb. 1, 2013, in favor of the patient’s estate against both the doctor and hospital jointly and severally, awarding $910,742.49 in damages. The defense moved for a judgment notwithstanding the verdict to nullify the jury verdict, but the court denied the motion.
The doctor and hospital appealed, alleging the lower court erred in allowing evidence of the doctor’s actions without expert testimony proving the injury would have been avoided had the doctor completed all the steps. The Appellate Court of Illinois, in a unanimous opinion, stated, “[w]e believe the circuit court correctly viewed defendants’ efforts to hold [the doctor] to a standard of absolute certainty as being akin to requiring plaintiff to prove that, but for the claimed negligence, a better result would have been obtained. This is contrary to established precedent.” The appellate court upheld the jury’s verdict, affirming the family’s monetary award.
What this means to you: This case shows the need for taking reasonable care when transecting critical body structures. The medical malpractice cause of action is rooted in negligence. The district court in this case stated that to be successful in a medical malpractice claim, the plaintiff must prove: (1) the applicable standard of care; (2) a provider’s negligent failure to comply with the applicable standard of care; and (3) a resulting injury proximately caused by the alleged negligence. Negligence can be defined analytically as when the burden is less than the product of the chances of injury multiplied by the gravity of harm. In this case, the equation was skewed because the gravity of harm was huge. One of the experts that testified for the plaintiff’s side stated “everything is better than cutting the common bile duct.” Because the gravity of harm is so large, it is paramount for surgeons to take care consistent with the standard of care established within the medical community.
A lesson to be learned from this case is to constantly stay up-to-date on the best practices for ensuring patients are treated safely. In this case, an expert for the plaintiff testified that a reasonably careful surgeon performing a gallbladder surgery should employ four precautionary steps to minimize the chance of misidentifying and cutting the common bile duct.
The first step is to utilize a technique called the critical view of safety (CVOS), which involves a three-part process: (1) dissection of an area called Calot’s Triangle; (2) removal of the infundibulum, i.e., the bottom part of the gallbladder, from the liver; and (3) confirmation that the two structures going into the gallbladder are not heading back to the liver. The expert stated the standard of care requires a reasonably careful surgeon to try to achieve the CVOS before cutting a structure.
Second, the expert stated if the CVOS cannot be achieved, the surgeon should take alternative steps to correctly identify the common bile duct so as to avoid injuring it. One option is to perform an intraoperative cholangiogram, or IOC, a procedure in which a small hole is made in the duct and a dye agent is injected through a catheter. X-rays are then taken to assess and identify the relevant structures through real-time images. An IOC is not a risk-free procedure, but the expert confirmed that studies show the procedure is generally safe and reliable.
Third, if the surgeon is unable to identify the various ductile structures through the CVOS technique or an IOC, the next precautionary step he or she should take is to consult with another surgeon — ideally a hepatobiliary surgeon — for a second opinion before cutting the suspect structure.
Fourth, if the surgeon still is unable to clearly identify the anatomical structures, then he or she should perform only a partial removal of the gallbladder instead of a complete removal. The surgeon should get as much of the gallbladder off the liver as possible, divide it there, leave a drain, and (in the words of the plaintiffs’ expert) “call it good.” The expert acknowledged a partial removal is not ideal because a portion of the diseased gallbladder would be left behind and there would be a risk of a bile leak. However, he explained, a procedure called an endoscopic retrograde cholangiopancreatography could be performed later to resolve the possible bile leak.
These steps, if utilized, could have prevented the harm here and could prevent future injuries to patients having gallbladder surgeries.
Finally, note that this surgeon also had an opportunity to request the assistance of the hepatobiliary specialist before the common bile duct was severed. Once the surgeon realized the patient’s condition prevented the procedure from being performed laparoscopically due to excessive inflammation around the gallbladder, an expert could have been brought in before proceeding further. Inflamed tissues surrounding delicate anatomical structures make visualization and dissection extremely difficult unless the surgeon has had extensive specialized training in dealing with similar cases. Additionally, though initial diagnostic testing may not have revealed the surrounding inflammation, it should have been anticipated by the surgeon as a possible complication. Expert hands, available immediately, should have been brought in before the less experienced surgeon began the dissection.
- Appellate Court of Illinois For The First District, Case Number 1-13-2927, December 23, 2015.