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Uterus branding shows risk and benefits of a videotape
In a recent lawsuit, a woman accused her doctor of "branding" his alma mater’s initials on her uterus during surgery. A legal expert says the crux for risk managers is how the videotape of the surgery both caused the lawsuit and might end it in the doctor’s favor.
If not for the videotape sent home as a keepsake for the patient, the lawsuit might never have been filed, according to Richard Boone, JD, an attorney in Vienna, VA, who specializes in defending medical malpractice lawsuits. But once the lawsuit was filed, the videotape became the doctor’s very best defense, he says. That conundrum illustrates the pros and cons of sending patients home with a videotape, Boone says.
Sending videotapes home with the patient is a very controversial practice, with some risk managers and attorneys saying they are just lawsuits waiting to happen. The practice is most common in laparoscopic surgery, since a videotape is easily and sometimes routinely made from the video image used by the surgeon. The biggest risk, some critics say, is that patients will wildly misinterpret what they see on the tape and then a lay jury can be equally swayed by a tape that might actually depict standard, high-quality care.
Marking a uterus — on videotape
That appears to be what happened with the lawsuit making headlines in Kentucky, Boone says. J. Michael Guiler, MD, of the Women’s Care Center in Louisville, is being sued by former patient Stephanie Means. According to statements made publicly by Means, Guiler performed a hysterectomy on her on Aug. 14, 2002, and gave her a videotape of the surgery to take home. Her attorney, Michael Dean, JD, says the tape clearly shows the 2-inch letters UK being inscribed on Means’ uterus shortly before it was removed. The UK stands for University of Kentucky, where the doctor studied.
The lawsuit also names the Women’s Care Center where Guiler works. The suit claims that the "branding" was done for no medical reason and that it was "intentional, degrading, reckless, outrageous, and intolerable." It seeks unspecified actual and punitive damages. When the lawsuit received widespread media attention, at least two other women came forward with tapes depicting Guiler marking the uterus in similar ways.
Means filed the lawsuit after watching the videotape at home, months after the surgery. In addition to her own claims, her husband, David, claims he has suffered a loss of companionship with his wife because of the incident. The couple seeks a trial by jury and punitive damages.
In a statement, Guiler said that patients are informed about the procedure before surgery, including the need to mark the uterus. He says he did not specify to Dean how the uterus would be marked. Laparoscopic surgeons report that they commonly rely on stitches or burn marks from cautery, laser, or harmonic scalpel to mark tissue and organs.
The surgeon defended his actions by calling them a routine part of performing a hysterectomy. Others in the surgical community confirmed that it is common to mark the uterus during a laparoscopic procedure to aid the surgeon in orienting left/right and up/down.
Guiler said that marking the uterus gives doctors a point of reference before it is removed, an important concern for laparoscopic procedures with limited visibility and viewed on a video monitor. The doctor acknowledged that he inscribed the letters UK as a tribute to his alma mater, explaining that it doesn’t matter what letters or symbols are used to orient the surgeon.
"Not only am I always able to remain oriented for the patient’s safety, I felt this was honorable since it made reference to the college of medicine where I received my medical degree," he said.
Don’t give away only copy of best evidence
Boone says it is of no importance that the doctor chose to mark the uterus with his alma mater’s initials.
"I don’t think it legally makes a difference whether he puts a smiley face or the initials of his alma mater or his wife’s birthday," Boone says. "I viewed the videotape on television, and it showed how he used the monogram to make it really clear which was the right side and which was the left side. Listening to the guy explain it on TV, I think a jury is going to believe him."
While it may seem that it was a huge mistake to send the patient home with a videotape of the surgery, since that prompted the lawsuit, Boone says the issue is not that simple. The patient might never have sued, he says, but what if the patient found out about the uterus marking some other way?
"If there had been some inadvertent disclosure, then the case would look much worse for the physician just because of the weird facts," Boone says. "But he voluntarily sent the video home with the patient, so it’s clear that he wasn’t trying to hide anything. He can make a strong case to the jury that he wasn’t doing something funny without the patient’s knowledge and then laughing about it with his buddies in the OR. It was routine, nothing to be ashamed of, and so he sent her home with the tape."
That argument should resonate with a jury, if the case gets that far, he says. Boone predicts the doctor will prevail, but he still finds lessons for risk managers in the Kentucky case. For one thing, Boone says, the doctor erred by not keeping a copy of the tape.
"In any case where there can be real concern about the technical execution of a procedure and you give away your only copy of the best evidence showing how it was done, that’s not a good idea," according to Boone, who says the same advice applies to other types of medical evidence as well. "I’ve preached to clients for 20 years that they cannot give up their only copy of an X-ray, but they continue to do it. If the X-ray you’re handing to the patient absolutely saves your bacon, it’s going to disappear from the face of the earth and you’ll never see it again. If it proves you’re at fault, you’ll see it blown up 8-feet tall and 4-feet wide and projected on the courtroom wall."