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News: The patient, a 30-year-old man, was admitted to a medical center in September 2010 for a laparoscopic gallbladder removal procedure. The procedure was performed by a surgeon with more than 20 years of experience. The surgeon severed an artery and vein while attempting to cut connective tissue covering the gallbladder. The surgeon continued and completed the gallbladder removal, but vascular surgeons were brought in for emergency vascular surgery. The patient survived but emerged with permanent neurological damage. The patient brought suit against the initial surgeon and the medical center, and he claimed that the surgeon’s actions constituted medical malpractice. The defendants claimed that they exercised ordinary care during their treatment of the patient and that his injuries were from an unfortunate complication that is a known risk of laparoscopic surgery. The jury found the surgeon and medical center jointly and severally liable and awarded the patient $1.5 million in damages.
Background: The patient was a 30-year-old man who was studying aviation maintenance and had been a car mechanic, security guard, and amateur boxer. The patient suffered from gallstones, which were causing severe, sharp abdominal pain, but he otherwise was in healthy condition. He was admitted to a medical center in September 2010 for a laparoscopic gallbladder removal. The laparoscopic procedure typically involves the surgeon cutting four small openings in the abdomen to insert cannulas, narrow tube-like instruments, and a laparoscope, essentially a tiny telescope used to give the surgeon a view of the patient’s internal organs. During the initial stages of the procedure, the surgeon pushed his blade through the patient’s navel in one of the small incisions and sought tension from the fascia, a connective tissue that covers the gallbladder. When his blade met the tension, the surgeon began to cut. However, this tension was not from the fascia, but from an artery and vein, and the surgeon did not find out until after the cut was made. The surgeon had cut the patient’s right common iliac artery and right iliac vein.
Once the surgeon discovered the mistake, he called for vascular surgeons to be brought in. The surgeon continued with the gallbladder removal while waiting the additional vascular surgeons, and the removal was completed without further complication. When the vascular surgeons arrived, they performed emergency surgery and managed to stabilize the patient. Unfortunately, the damage already was done. The patient emerged with permanent neurological damage and requires an electric stimulation device, which was implanted in his spine, to manage the pain from permanent nerve damage. The patient was unable to work in any of his previous occupations.
The patient brought suit against the surgeon and the medical center, which employed the surgeon. He alleged that the surgeon was negligent while performing the procedure and the medical center was responsible through the doctrine of respondeat superior, which means "let the master answer" and generally holds that an employer is responsible for the errors of an employee performed in the course of employment. Expert witnesses from the plaintiff and defense consisted of surgeons with a collective 15,000 gallbladder surgeries. These experts opined that cutting an artery or vein is a known possible complication of laparoscopic gallbladder surgeries, but during their surgeries, none of the experts had done so. Nevertheless, one expert who was publicized as a world leader in a particular type of surgery had cut an aorta while performing a surgery. The defense attempted to capitalize on this situation and stated that the surgeon and medical center exercised ordinary care at all times and in all respects with regard to the treatment of the patient. After about eight hours of deliberation and a near-hung jury, the jury returned a unanimous verdict for the plaintiff. It found the surgeon and medical center liable for $1.5 million in damages.
What this means to you: The primary issue in this case was whether the surgeon fell below the standard of care while performing the incision and attempted cut of the fascia. Physicians and surgeons usually are proctored by other physicians with expertise in a procedure before they are permitted by hospitals to perform those procedures on patients. This step ensures hospital administrations that their patients will receive the best of care. Your own medical staff rules and regulations should address this step as it affords extra protection to patients and physicians as well as mitigating damages if an event occurs. The surgeon in this case appeared to have heavily relied on his past experience and expertise in attempting to defend himself. However, experience and expertise does not make a physician immune from negligence. Everyone make mistakes, even those who are the best at their profession.
Medical malpractice occurs when a physician fails to meet the applicable standard of care while treating a patient. In this case, the immediate action by the surgeon, once aware of the injury to the blood vessels, should have been to do a laparotomy, apply pressure over the area with clamps or sponges, and call for help. Continuing with the removal of the gallbladder was likely negligent, and the resulting loss of blood supply to the areas fed by the iliac artery became permanently damaged. Laparoscopic surgery has risks, and a common one is damage to blood vessels. Surgeons need to be especially cautious, as bleeding is not immediately evident through the laparoscope, and therefore should assess the patient’s frequently for signs of internal bleeding. Physicians must be cautious to exercise the standard of care that another physician in the same or similar situation would exercise, regardless of how many years the physician has been practicing. Over time, this standard of care is constantly evolving with new developments in medicine and technology. Physicians thus must keep themselves up to date with such recent developments, especially as they gain traction and become more common in the field. If a new procedure or technique becomes normal, a physician who has been practicing 20 years must adapt and respond to these new changes, or risk facing questions about why the physician failed to perform similarly to other physicians given similar circumstances. However, "new" doesn’t always mean "better,"so there can be debate and a potential for defense if an experienced physician performs a procedure while relying on known, proven techniques while eschewing newer or not as well-tested techniques, as long as the physician has a sufficient medical reason supporting that decision. Keeping accurate records and documentation backing up these decisions can greatly aid a physician attempting to defend a position based on the choice of one technique over another.
For the medical center, liability hinged on whether the surgeon was an employee or an independent contractor.The legal doctrine of respondeat superior allows an injured party to recover damages from an employer based on the actions of an employee, which typically gives the injured party a better chance for recovering actual damages. Physicians working for a hospital often are difficult to categorize due to the nature of their work. Courts can come out either way by holding physicians to be employees or independent contractors based on the particular circumstances of the relationship. Note also that some states prohibit hospitals from hiring physicians directly. This issue is a complicated and state-specific one tabled for present purposes, but it requires input from qualified legal counsel.
There are benefits and detriments to treating physicians as either one. A hospital has less control over an independent contractor physician, but it is less likely to be liable for the physician’s actions. A hospital has more control over an employee physician, but it is more likely to be liable for the physician’s actions. This decision is a difficult one to make, as thereare many implications, and it should be discussed with a competent attorney as the ramifications go beyond the medical practice realm and into tax considerations as well. Whichever route the hospital chooses to go, it is also important to work with competent counsel to craft appropriate documents to protect the hospital’s legal position on that question should litigation subsequently ensue. In this case, the surgeon was found to be an employee of the medical center, which meant that the medical center could be held responsible for the total amount of the verdict.