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By Damian D. Capozzola, Esq.
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
2015 JD Candidate
Pepperdine University School of Law
News: The patient, a 65-year-old woman, sought treatment at a hospital for a hernia in 2008. During what was supposed to be a routine procedure to correct the hernia, the patient’s colon was punctured. The operation was performed by an attending physician and a resident-in-training, which the patient was not informed about. The puncture was not detected at the time. Two days later, the patient’s heart stopped. Along with the heart attack, the patient suffered from a serious infection, organ failure, and septic shock, which resulted in a month-long coma. The patient brought suit against the attending physician, the resident, and the hospital. She alleged that the physicians were negligent and the hospital was responsible for the activities of its resident training surgeon. Before the trial, the attending physician settled the claims against him, but the resident and hospital denied any wrongdoing. The jury found the resident and hospital liable and awarded the patient $12 million in damages.
Background: The patient was a 65-year-old grandmother who was suffering from a hernia and sought treatment at a hospital in 2008. She underwent what was supposed to be a routine laparoscopic procedure to correct the hernia, but during the operation, the patient’s colon was punctured. While the patient was sedated, a member of the hospital’s residency teaching program, who was not previously involved in the patient’s case, was brought in to assist the attending physician in the operation. The patient did not know that a surgical resident would be taking part in her operation.
During trial, the testimony conflicted regarding what this resident actually did during the procedure. The surgical resident claimed that he performed only various surgical preparations and did not puncture the patient’s colon, while the patient alleged that the attending physician allowed the surgical resident to use a special surgical device during the operation and he perforated the patient’s colon. Regardless of which account is true, the patient’s colon ultimately was perforated, and the perforation was not detected by the attending physician before the patient was closed.
As a result of the perforation, the patient developed a massive abdominal infection and subsequently suffered multiple organ failure, septic shock, and a heart attack, which necessitated urgent care to save the patient’s life. She was rushed into an operating room, where the colon perforation was detected. Due to these severe complications, the patient required multiple surgeries to attempt to repair the damage done by the perforation. She went into a month-long coma as well. By the end of her inpatient treatment, the patient had spent 70 days in the hospital, lost most of her large intestine, and had accrued $1 million in medical bills. Her injuries resulted in her being unable to properly digest food and caused serious restrictions to her movement.
The patient brought suit against the attending physician, the resident (now a hand surgeon), and the hospital. She alleged that the physicians were negligent during the operation and that the hospital was responsible for the activities of its resident training surgeon. The patient claimed that the perforation of the colon, done by the resident, was action falling below the standard of care, and that the attending physician should not have allowed the resident to perform any surgical operations. Furthermore, her lawsuit alleged that the attending physician was negligent for not detecting the colon perforation before closing the surgical wound and finishing the procedure. Before trial began, the attending physician settled the claims against him, but the hospital refused to accept responsibility for its residents’ program. At trial, the hospital argued that the individual physician was responsible for the acts of a resident, not the hospital itself. After three and a half hours of deliberation, the jurors agreed with the patient, found the hospital and resident jointly and severally liable, and awarded $12 million in damages.
What this means to you: Colon perforation is not an uncommon risk during any abdominal surgery and is seen more frequently in laparoscopic procedures than open laparotomies. Always ensure that the patient understands this risk and document that understanding in the medical record. That said, there was no issue regarding whether the patient suffered an injury caused by a physician falling below the standard of care in this case. The colon perforation was not debated, and such a mistake being overlooked and missed during an operation clearly constituted medical malpractice. The seriousness of the patent’s injuries revealed just how much harm was caused by the missed perforation, and the defendants wisely did not attempt to argue this.
When the actions clearly fall below the standard of care, physicians and hospitals would be wise to do exactly what the attending physician did in this case: Settle before trial. Settlement has numerous advantages over proceeding all the way through with the case, and the most obvious of these is the amount of money to be saved. While verdicts can be expensive if unfavorable, they can be a relief if favorable; however, the verdict is a gamble. Even with helpful evidence, predicting a jury outcome can be difficult. Settlement, however, can eliminate this gamble and prevent huge jury verdicts. Settlement early also can prevent the drawn-out stress and costs involved with prolonged litigation. The case here was initiated in June 2010 and finally resolved at the end of May 2014. The attending physician here settled before the $12 million verdict and thus cannot be held liable for that amount, although the amount he agreed to pay was confidential.
The physician’s negligence in this case was rather straightforward: The physician failed to properly oversee the surgical operation and failed to identify the punctured colon. Physicians have a duty to provide treatment that meets the applicable standard of care; that is, physicians must provide care that a reasonable physician would provide given the same or similar circumstances. There is nothing inherently wrong with allowing certain activities to be performed by other qualified medical staff, including nurses and residents, but the physician ultimately is responsible for the patient’s treatment and must ensure that the correct steps have been taken. The standard procedural consent form always should state that the surgeon might have assistants including students and residents present during the procedure.
Although residents are licensed physicians, they still are students and in training. Residency programs must meet specific state and federal requirements for hospitals to receive funding from the government for providing the training. The requirements include strict resident oversight by qualified physicians and surgeons. This supervision is monitored and quantified by residency program leaders from the hospital and the school that provides the students. Results are reported to government agencies so that the hospitals can maintain their status as teaching facilities. The lack of oversight in this case might be attributed to the surgeon lacking enough information about the level of experience of the resident. It is not uncommon for a resident to be hesitant to tell an attending that he or she is unsure of a diagnosis or a procedure rather than being upfront and able to communicate openly. Much of this reluctance might be fear-based if attendings are insensitive to the needs of their students.
In any event, the attending physician in this case likely realized that he faced a difficult battle in arguing that he satisfied the standard of care when he completely missed a perforation in the colon during a routine hernia operation, especially considering that this perforation might have been the fault of someone under his own supervision. This case illustrates the point that physicians should be particularly cautious when delegating tasks to others, and make sure that these tasks were correctly performed, before finishing treatment procedures and discharging patients from their care. Failing to properly supervise procedures can lead to liability, when reasonable physicians given the same or similar circumstances would have a more active hand and adequately supervise such procedures.
Hospitals of all types can be held liable for the actions of their employees. Thus, they must be careful in properly supervising and creating procedures for oversight of such employees, which is an especially important point in jurisdictions and circumstances in which physicians are hospital employees instead of independent contractors. Teaching hospitals might have increased chance for liability based on the acts of their residents, as evidenced in this case. Residents themselves can and do get sued for medical malpractice, and they can be held to the same standard of care as fully licensed physicians. However, because plaintiffs likely will be looking for more and deeper pockets to pursue, an important question is who else can be responsible for the acts of the student.
There was a disagreement between the patient and the hospital as to who should be held liable when a resident-in-training acted negligently and whether this negligence should be imputed to the supervising physician or the teaching hospital. It is possible for either party to be held responsible. An attending physician can be held liable under a theory of vicarious liability, if the physician is present and fails to sufficiently supervise, or a theory of direct liability, if the physician fails to supervise as inherently required as part of the job position at a teaching hospital. Also, the hospital itself can be held directly liable. Hospitals have a duty to provide services and care to patients, and they have a duty to supervise that care. If a hospital’s training program does not sufficiently provide for supervision, then the hospital itself might be liable for this failure. In an effort to protect themselves, hospitals should ensure that there are proper procedures and standards in place for physicians to follow in regard to their residents-in-training.
Oversight and review boards can further assist these procedures to ensure that teaching physicians are properly supervising their students and making sure that the students don’t exceed their experience or take on tasks for which they are ill prepared.