News: A patient was admitted to a medical center with complaints of abdominal pain and gallstones. A physician removed the patient’s gallbladder via laparoscopic cholecystectomy. The patient was discharged three days later, but returned to the medical center three days after that with difficulty breathing, syncope, and hypotension. The patient presented to two other medical centers, receiving different diagnoses and treatments, and she underwent multiple procedures, including removal of her spleen.

The patient filed suit, alleging that the first physician negligently contacted the wall of the patient’s artery and cut into the patient’s liver. The physician denied any liability and brought a motion for summary judgment, arguing that the patient could not establish causation. The court agreed and granted the physician’s motion. The patient appealed, but the appellate court upheld the ruling.

Background: In 2013, a patient presented to a medical center complaining about abdominal pain and gallstones. A physician removed the patient’s gallbladder using a procedure known as a laparoscopic cholecystectomy. The patient was discharged three days after the procedure. However, the patient returned to the same medical center three days after discharge, suffering from difficulty breathing, syncope, and hypotension.

The same physician evaluated the patient and admitted her to the ICU. The patient was provided with blood products and electrolyte and fluid support based on the evaluation. Two days later, the patient was transferred to a different medical center; she underwent an exploratory laparotomy and evacuation of a hematoma by a second physician.

Eleven days later, the patient returned to the second medical center and received a CT scan that revealed a pseudoaneurysm of the splenic artery. The next day, the patient went to a third medical center, suffering from abdominal pain and syncope. She was diagnosed with possible pancreatitis and underwent multiple procedures, including an attempted splenic artery embolization and an exploratory laparotomy during which her spleen was removed.

The patient filed suit against the first physician, medical center, and others. The patient claimed that the initial physician’s instrument came into forceful contact with an artery supplying blood to the patient’s spleen, and that the physician cut into the patient’s liver. The patient initially alleged that the physician’s postoperative conduct was negligent, including negligently prescribing blood-thinning medications, but abandoned that claim on appeal.

The defendant physician deposed the patient’s expert witness on the standard of care and causation, two important elements necessary for medical malpractice claims. After the deposition, the defendant contended that the patient could not establish causation that the physician’s actions actually caused the patient’s injuries. The defendant brought a motion for summary judgment, which is a motion that seeks adjudication by the court when there is no dispute of material facts or when a plaintiff cannot satisfy a necessary element of a claim. The defendant relied on the plaintiff’s expert’s deposition, in which he testified that bleeding is a risk associated with a laparoscopic cholecystectomy, even when the procedure is performed correctly.

The court agreed with the defendant physician and found that the plaintiff’s expert failed to demonstrate causation, and that the legal doctrine of res ipsa loquitur, which implies negligence based on an injury, did not apply. The plaintiff appealed, but the appellate court upheld the lower court’s ruling.

What this means to you: This successful defense case reveals potent methods for defeating medical malpractice claims. On the substance, the defendant physician successfully challenged one of the necessary elements that an injured patient must prove when alleging medical malpractice: causation. Causation includes factual and legal aspects, where the physician’s actions must have been a “substantial factor” in contributing to the patient’s harm, but there may be an intervening action or event that cuts off the physician’s liability. If the risk of injury exists, even when a procedure is performed correctly, then simply because an injury occurred does not mean that the physician was negligent.

The legal doctrine of res ipsa loquitur provides for a “common sense” inference of negligence when there is no direct evidence of the defendant’s conduct, but an injury occurred and the specific injury does not occur in the absence of negligence. However, for a jury to consider this doctrine, the injured patient must produce sufficient evidence to draw the common sense inference — evidence that the kind of injury only occurs when a physician has been negligent.

Laparoscopic procedures are advantageous because the incisions are tiny and the patient recovers quickly with less pain. The physician can view the operative area using instrumentation that enlarges the visual field. A disadvantage of the laparoscopic approach is that the physician may be unable to visualize a larger area surrounding the surgical site and thus be unaware of a surgical injury, such as a laceration of a blood vessel or puncture of a nearby organ. The operative report, which must be completed as soon as possible after surgery, will not mention any untoward event occurring during the procedure and no rescue interventions will be taken at the time the injury occurs. The problem will not be identified until the patient seeks medical attention due to the injury. This may be days, weeks, or even months after the injury. To mitigate any possible litigation, the physician must ensure that the patient is aware of the risks inherent in the laparoscopic procedure and immediately return to the hospital if any symptoms, such as fever, excessive pain, weakness, dizziness, or other more obvious signs of bleeding, occur.

Expert testimony commonly plays a critical role in determining whether the causation element has been satisfied, among other standards. Therefore, the selection and retention of an expert may make or break a party’s case, as may the expert’s deposition. In this case, the patient disclosed a single expert who opined on the standard of care and on causation, and the defendant physician deposed the expert. Depending on the expert’s familiarity with the legal process and depositions specifically, the expert may be adept at providing savvy answers that skirt the line and satisfy the applicable legal standards. But it may be the case that the expert’s answers are patently insufficient, as here, and an expert’s opinion that a required element is merely “possible” may be an appropriate avenue to challenge the patient’s allegations. It is important for physicians and care providers to work closely with their own retained experts as well as counsel in preparing for a thorough and calculated deposition of a patient’s expert to evaluate all potential methods for challenging the patient’s claims.

An important lesson from this case revolves around the particular procedural challenge that this defendant physician raised. Here, the physician brought a motion for summary judgment, which seeks adjudication by the court before the matter proceeds to a jury. This motion is appropriately brought when there is no dispute of material facts or when a plaintiff cannot satisfy a necessary element of a claim. In this case, the defendant physician challenged the patient’s ability to prove causation because of the deposition from the patient’s expert witness. The patient’s expert testified that he was “not certain what” the defendant did that caused the damage and wavered by claiming that the instrumentation was a “possible” cause of injury. The expert was unable to say whether the injury was actually caused by the defendant physician’s use of a trocar, or by postoperative pancreatitis. The court found that this uncertain testimony was insufficient to permit a jury to infer that the patient’s injury would not have occurred absent negligence.

REFERENCE

Decided on July 30, 2019, in the Arizona Court of Appeals, Case Number 1 CA-CV 18-0444.