Legal Review & Commentary

Unnecessary and negligent surgical procedure leads to death and a $1.4 million verdict

By Jan J. Gorrie, Esq., and Blake Delaney, Summer Associate
Buchanan Ingersoll Professional Corp., Tampa, FL

News: One summer day, a man was scheduled to have surgery to remove his gallbladder. Upon the recommendation of his gastroenterologist, however, the patient underwent an endoscopic retrograde cholangiopancreatography (ERCP) first. Negligence during the ERCP caused the man to develop pancreatitis, which in turn required the originally scheduled gallbladder surgery to be performed by way of an open laparoscopic cholecystectomy. During the patient’s follow-up visits, the same doctor failed to recognize abnormal test results and failed to re-hospitalize the man. The man died six weeks after the original ERCP procedure. The decedent’s family filed suit against the doctor, resulting in a $4.7 million award from the jury. California caps on medical malpractice verdicts reduced the award to $1.4 million.

Background: On June 13, 2000, a 46-year-old real estate agent was scheduled to undergo surgery to remove his gallbladder. When he arrived at the hospital, his gastroenterologist, who was not board-certified, recommended an ERCP, in which a doctor uses an endoscope to diagnose various problems of the gastrointestinal tract. The doctor recommended the ERCP because he thought there was a gallstone in the common bile duct.

Three hours after the procedure, the patient required hospitalization for ERCP-induced pancreatitis. An ERCP normally has a complication rate of 10%, and the specific complication of pancreatitis occurs in 1%-5% of all cases. While hospitalized, a general surgeon went ahead with removal of the patient’s gallbladder by means of a laparoscopic cholecystectomy. Because of adhesions and fluid from the pancreatitis, the surgeon had to perform the operation using an open procedure. During the gallbladder removal surgery, an X-ray showed there were no gallstones in the common bile duct, contrary to what the gastroenterologist had thought.

The surgeon and gastroenterologist discharged the patient, but required a follow-up visit the next month. Consequently, the man returned to the clinic for a CAT scan on July 6, at which time his doctors further required him to return to the clinic from July 19-21 for additional testing. Despite abnormal results from the CAT scan on July 6, the doctors did not hospitalize the patient, instead sending him home on July 21. After continuing to experience problems, the patient went to his local hospital on Aug. 16 and was subsequently transferred to a larger hospital on Aug. 18. Doctors at the second hospital performed two emergency surgeries, but the man died on Aug. 29.

The man’s widow and two minor children filed suit against the gastroenterologist, arguing that the ERCP procedure was needless and caused the decedent to develop pancreatitis. Relying on testimony from five expert witnesses, the plaintiffs alleged that the doctor was liable for failing to give full and complete informed consent, for failing to disclose three possible alternatives to the ERCP, for having recommended and performed the ERCP, for negligently performing the procedure when he cannulated the pancreatic duct, for failing to re-hospitalize the patient on July 21 after an abnormal CAT scan, and for committing a battery upon the decedent by intentionally misrepresenting the need for an ERCP.

The defendant countered with four expert witnesses to show that the standard of care was met in all instances and that no misrepresentations were made. The defendant asked the jury to return a defense verdict, but in the event the jury decided to impose liability, then to return damages in an amount considerably less than what the plaintiffs had requested. The jury found there was medical negligence and failure to obtain informed consent, but concluded there was not a medical battery. The jury awarded the plaintiffs $4.7 million, including $1.7 million for loss of past and future household services and $3 million in general damages. California caps on medical malpractice verdicts, which limit noneconomic damages to $250,000, reduced the award to $1.4 million.

What this means to you: "This case highlights potential concern in the areas of communication, informed consent, appropriate certification, and general risk management protocol," observes Leilani Kicklighter, RN, ARM, MBA, CPHRM, CHT, past president of the American Society for Healthcare Risk Management and director of risk management services for the Miami Jewish Home and Hospital for the Aged.

The lack of communication between the gastroenterologist and the general surgeon likely contributed to the alleged negligence in this case. Kicklighter recommends investigating whether the gastroenterologist documented his justification and indication for performing the ERCP, and whether he communicated these findings with the general surgeon. Specifically, "if the gastroenterologist performed the ERCP just before the scheduled gall-bladder surgery because he thought there was a stone in the patient’s common bile duct, then one might question the timing of the procedures, especially if the surgeon were not included in the decision," she says.

The risk management department would certainly want to explore whether it was imperative for the gastroenterologist to identify a gallstone before undertaking the surgery and, if so, whether he had communicated this need to the general surgeon, Kicklighter says. Moreover, it may be that the gallbladder surgery was not performed at the most opportune time, given the complications that arose during the ERCP, she adds.

The gastroenterologist’s conduct also raises concerns about informed consent, even though the jury ultimately concluded that there had not been a medical battery. The duty to provide informed consent imparts a responsibility upon the physician greater than simply explaining to the patient what is going to happen during the procedure.

"Were all the risks, benefits, and alternatives thoroughly discussed with this patient by both the surgeon and the gastroenterologist prior to the ERCP and the surgical procedure?" Kicklighter asks.

Although a hospital’s consent form confirms that the patient is satisfied with and understands the implications of the upcoming treatment, the ultimate duty to provide the patient with information to be able to make an informed decision regarding consent always falls on the physician performing the procedure.

Finally, the hospital’s risk management department should ensure that its protocol provides the hospital with the best possible protection from liability. For example, the hospital’s gastroenterology lab should have reported the alleged negligence to risk management at the time of the procedure, or as soon thereafter as practicable, so that risk management could follow up with the situation. Further, guidelines should identify the lead physician in situations where a specialist and surgeon might end up working together, such as at a postoperative clinic visit. Kicklighter also recommends implementing policies whereby independent practitioners are clearly identified to the public so as to limit the hospital’s vicarious liability in situations where a specialist or surgeon incurs liability.


• Tulare County (CA) Superior Court, Case No. 01195845.