News: A patient suffered from intermittent abdominal pain and was diagnosed with an abnormally functioning gallbladder. A physician performed a laparoscopic cholecystectomy, which the physician reported as routine, and the patient was released the same day. However, the patient continued to suffer pain, nausea, and vomiting. It was subsequently determined that the patient suffered from a bile leak, which was corrected by a second surgery.

The patient brought a medical malpractice action against the initial physician and his medical group. A jury determined that the physician was not negligent, and that the injury was instead a result of the patient’s unusual anatomy. A state appellate court affirmed the decision, finding that it was not against the manifest weight of the evidence.

Background: In 2012 and the beginning of 2013, a woman suffered from intermittent abdominal pain. The characteristics of her symptoms indicated a likelihood of gallbladder disease. The patient was diagnosed with abnormal functioning gallbladder, which required removal. The general surgeon examined the patient, asked her for a history of her symptoms, and explained the risks and benefits of a cholecystectomy.

The day after the examination, the physician performed a laparoscopic cholecystectomy on the patient. According to the physician, the procedure was seemingly routine, and the patient was released the same day. Nevertheless, the patient was readmitted to the hospital the next day because she was experiencing left-sided chest pain, nausea, and vomiting. She was released a few days thereafter.

Over the next few months, the patient continued to experience intermittent pain and returned to the hospital several times. Ultimately, a bile leak was determined to be the cause of her complications, and she then underwent a second surgery to drain the leak. The leak was caused by an injury that occurred during the first surgery. Despite the second surgery, the patient alleged that she continued to experience pain.

In 2014, the patient filed a medical malpractice lawsuit against the initial physician and his medical group employer. While there was no doubt that the bile duct had, in fact, been injured by the physician during the first surgery, the question was whether the physician had violated the standard of care in causing the injury. The patient presented multiple expert witnesses who focused on the concept of the “critical view of safety,” which was developed in order to avoid injuries during laparoscopic surgeries and involves physicians viewing the surgical field through a telescope prior to commencing the procedure.

After hearing expert testimony from both parties, the jury determined that the physician had not been negligent in performing the surgery and that the injury was caused by the patient’s unusual anatomy, which could not be seen through the telescope while performing the presurgery critical view of safety. The patient appealed, arguing that the jury’s finding was against the manifest weight of the evidence. However, the state court of appeals affirmed the jury verdict and lower court’s decision.

What this means to you: An important lesson from this case is that although a patient may have suffered an unexpected injury, it does not necessarily mean that a physician or care provider was negligent. An injured patient may automatically assume and allege that the physician failed to satisfy the standard of care, but an expert’s analysis and a jury’s determination are more complicated and nuanced. In this case, the jury determined that the physician’s care was appropriate, and the appellate court affirmed this determination. The appellate court’s reasoning focused on the fact that, while the patient’s expert witnesses presented convincing evidence, the physician’s expert testimony also presented facts that would support a claim in the physician’s favor. Consequently, there was at least some evidence in support of the jury’s verdict, and it would have been incorrect for the court to find that the decision was against the manifest weight of the evidence.

Experts are crucially important for medical malpractice cases, and often are the deciding factor as to the success or failure of claims and defenses. In this case, the expert opinions on which the decision was formed presented slightly diverging views of what constituted the “critical view of safety.”

On the patient’s side, the experts detailed how, in a laparoscopic cholecystectomy, the area known as Calot’s triangle — defined by the cystic duct, the bottom of the liver where the gallbladder attaches, and the common bile duct — must be clearly identified. All fatty tissue must be carefully moved until these structures are clearly visible. In the event that the patient presents an atypical anatomical structure, the procedure must be delayed and further testing performed to determine the actual anatomy of the patient and gain a clear understanding as to how to proceed. There are several structures that could be damaged in the area, and it is necessary to have a complete and clear view of the ducts prior to clipping and cutting them to remove the gallbladder. The patient argued that the physician breached his duty of care in not obtaining a clear critical view of Calot’s triangle prior to proceeding with the surgery.

By contrast, the physician and his expert witnesses alleged that the correct procedure was followed. The physician asserted that the hospital where the procedure was performed is a teaching hospital; thus, medical students were present during the procedure and the physician reviewed the textbook explanation of how to achieve the critical view of safety by demonstrating each step of the procedure.

The physician further testified that the procedure was common and routine, and that in his surgical career, he had never injured a duct. He asserted that he believed that the patient had an aberrant branch of her right hepatic duct close to the cystic artery. This branch was hidden and could not be seen through the telescope even though the area had been appropriately cleaned of excess tissue. Because of this aberration, the duct was inadvertently clipped during the procedure.

A second expert physician also testified in the defendant’s favor, stating that the physician had not been negligent and the injury had been caused by the presence of an abnormality that could not be detected through the telescope. Ultimately, when presented with all the conflicting expert testimony, it is up to a jury to evaluate and weigh the expert opinions — and it is thus critical for care providers to choose the right expert.

Injuries to bile ducts during laparoscopic cholecystectomies are not uncommon. They can even occur during open cholecystectomies that are performed if scar tissue or other anomalies prevent the laparoscopic approach. When the bile duct is nicked or lacerated, bile leaks occur. These can be readily diagnosed using contrast media during scanning. What is most important to mitigate adverse results is the assurance of a patient’s full understanding of risks posed by the surgery, the alternatives to the recommended procedures and the expectations for recovery time, signs and symptoms of possible complications, and aftercare instructions. Obtaining the patient’s informed consent for a procedure and documenting the patient’s understanding of the risks and benefits involved before the procedure is performed are of critical importance.

Following the procedure, if the symptoms that led the patient to seek medical attention initially are not relieved, then something may be wrong and care providers have a duty to re-evaluate the patient. Patients who feel that their physicians are concerned about their welfare and willing to spend extra time answering questions and providing clear information are much less likely to be litigious.

The key lesson here is how both the patient and physician presented evidence in support of their positions that could have led a reasonable jury to find in either party’s favor. As noted by the appellate court, the patient’s allegation that the verdict was against the weight of the evidence was untenable based upon the physician’s evidence.

Furthermore, the jury’s decision as to whether to believe the physician’s expert testimony was not for the appellate court to reconsider, as this determination was properly before the jury and subject to deference by the reviewing court. The scope of the appeal required the court to decide whether a reasonable person could have found in favor of the defendant based on the evidence presented at trial. In this case, the appellate court found that the decision was supported by sufficient evidence to find that it was not against the manifest weight of the evidence.


Decided on Feb. 20, 2019, in the Court of Appeals of Ohio, Case Number 2019-Ohio-602.