News: An appellate court affirmed summary judgment in favor of a physician who failed to detect a leak in a patient’s bile duct during gallbladder removal surgery. Shortly after the surgery, the patient experienced abdominal pain, and returned to the hospital. Further testing revealed a small leak in the patient’s bile duct. A second surgery was performed, and the patient healed fully.

The patient filed a medical malpractice lawsuit, alleging the physician was negligent in causing the bile duct leak. However, according to the court, the plaintiff’s medical expert failed to include any reference to the applicable standard of care, and did not testify as to whether the physician deviated from the standard. Furthermore, the expert testified in his deposition the procedure seemed “reasonable.” An appellate court affirmed that this testimony was insufficient, and the trial court’s dismissal was appropriate.

Background: A patient was admitted to a hospital on June 12, 2014, after experiencing abdominal pain, diarrhea, and bloating for one to two months. Based on test results, a laparoscopic cholecystectomy was recommended, and performed on July 21, 2014. The surgeon did not report or note any complications, and the patient was discharged. However, the same evening, the patient experienced pain in his abdomen and left shoulder. The patient arrived at the ED where an ECG and lab work were performed. His symptoms were consistent with gas in a postsurgery patient. Although his white blood cell count was mildly elevated, it was still within the normal range. His other test results also were normal. Nevertheless, the ED staff contacted the patient’s physician, who instructed the patient to return the next day. According to the ED staff, the patient did not present sufficient symptoms for admission, and was sent home.

The next day, the plaintiff called his physician and reported severe pain. The physician prescribed Naprosyn and instructed the patient to report any changes in his condition. The patient’s pain did not subside, and he returned to the ED complaining of severe pain and acute distress. Hospital staff contacted his physician. Although his lab work was within normal ranges, the patient presented an elevated white cell count. A CT scan revealed a small amount of fluid in the patient’s pelvis, which is common after surgery. The patient was admitted to the hospital, but no leak was detected. After 24 hours, a second scan was taken. Results revealed a small leak in the patient’s bile duct, which was not detected by the CT scan. The physician inserted a stent to relieve the pressure and drain the fluid. The patient fully recovered within two weeks.

The patient filed a medical malpractice suit against the physician for failing to detect the leak. The patient chose a board-certified internist as an expert witness, who was deposed during the litigation. In his deposition, the expert described the standard ED protocol for evaluating a post-cholecystectomy patient. The expert specified that he would not testify as to a surgeon’s standard of care, and that he viewed the issue as whether the ED physicians had properly evaluated the patient’s condition. The expert never criticized or commented on the defendant’s alleged negligence or departure from the necessary standard of care.

Based on the patient’s expert, the defendant physician brought a motion for summary judgment, which seeks to fully or partially resolve matters when there is no material issue of fact. The court granted the motion because the patient failed to produce evidence that the defendant deviated from the standard of care. The patient appealed, but the appellate court affirmed.

What this means to you: Although the facts of the case seem to indicate the physician acted within the accepted standard of care, the outcome may have been different had the patient selected a more experienced, better-suited expert and presented his claim with more specificity. In particular, the patient failed to explain how the physician breached his duty of care, and how a physician acting within the necessary standard should have addressed the patient’s postsurgery symptoms. From the complaint, it was unclear as to whether the patient attributed his pain and suffering to the physician not acting immediately after the first visit to the ED, or whether the leak should have been avoided during the first surgery.

Laparoscopic cholecystectomy procedures, while less invasive, can have unexpected consequences due to a narrower visual field that limits the physician’s ability to see a laceration or puncture of a nearby organ or blood vessel. Physicians and care providers can inform patients about such prospective consequences, and help protect physicians in the event of a malpractice action. Written informed consent should be presented to patients and discussed before a procedure. The written consent should describe the procedure and complications in detail. Furthermore, written discharge instructions should be provided to postsurgical patients, including instructions to notify the physician or go to the ED if pain worsens or the patient develops a fever.

Unfortunately, this type of complication is not uncommon. That is why physicians and care providers in any setting are well served by listening to a patient’s complaints. Physicians and care providers must follow up with appropriate assessments and repeated diagnostic testing until they determine a diagnosis and required interventions. If unable to make this determination, a physician should not hesitate to consult with peers or specialists for possible solutions.

The expert witness testified in his deposition that, based on the lab results and scans performed at the ED during the patient’s first post-surgery visit, the defendant physician acted reasonably in instructing the patient to contact him the following day. Specifically, the expert explained the scans did not show any fluid and, other than a mildly elevated white blood cell count, all other values were normal. As a result, no leak was suspected at that point, and the leak was not detected until two days later when the second scan was performed.

The expert said the defendant had selected the least invasive treatment for the patient’s condition: inserting a stent to drain the fluid. The patient did not suffer any permanent damage. According to the expert, the procedure to treat the leak would have been identical even if performed on the previous day. In essence, the expert’s testimony stated that the deviation from the standard of care occurred when the ED did not admit the patient for observation on July 21. A 24-hour observation period would have been appropriate to assess the condition of the patient. If the pain had been caused by gas, it would have resolved itself within that period. Alternatively, if the pain was caused by a leak, it would have progressively worsened, and the patient could have been treated earlier, thus causing less pain and suffering to the patient.

Since the procedure would have been the same, this presented an issue for the patient because causation and damages are required elements in a medical malpractice action. Beyond the considerations of the applicable standard of care and whether the standard was met, a medical malpractice plaintiff also must that the physician’s negligence was a substantial factor in causing the patient’s harm. If the patient would have suffered harm despite a physician’s actions, or if a physician’s delay in providing treatment did not increase the amount of harm, then the patient may not be able to satisfy these necessary elements. Accordingly, even if a physician did not act within the standard of care, an uninjured patient is not entitled to recover damages. Physicians and care providers should carefully analyze a patient’s purported injuries, the factors contributing to such injuries, and the extent of such injuries.

In analyzing the trial court’s decision, the court of appeals identified deficiencies with the patient’s written briefing and argument. The appellate court noted that the plaintiff’s argument merely regurgitated citations of the expert’s deposition and citations of similar cases. However, the applicability of those citations was left unexplained. Furthermore, the court found the brief did not follow procedural rules, and generally was deficient. The court read and analyzed transcripts from the expert’s deposition, and how that testimony prompted the defendant’s motion for summary judgment. On review, the appellate court determined the plaintiff had failed to show how the defendant deviated from the standard of care, and summary judgment had been properly granted. This successful defense judgment shows that there are multiple ways to challenge a medical malpractice action. Judgment need not wait until trial as significant defects in a plaintiff’s case may be brought to light earlier. Physicians and care providers should consult with counsel and their own experts to evaluate a patient’s claims with an eye toward finding such missing required elements.


Decided on Nov. 22, 2019, in the Court of Appeals of Kentucky, Case Number 2019 WL 6245830.