Physician Legal Review & Commentary: Jury awards $1.5 million to patient who received negligent colonoscopy and subsequent laparoscopic surgery
News: A jury awarded a patient $1.5 million against a gastroenterologist and laparoscopic surgeon for their respective failure to perform a colonoscopy and subsequent laparoscopic surgery repair to the colon. The gastroenterologist perforated the patient’s colon during the colonoscopy through his use of a heater probe, which a jury found to be unnecessary and extremely risky, given the patient’s prior gastrointestinal history. The patient presented to the laparoscopic surgeon to repair three holes caused by the gastroenterologist, but the surgeon failed to detect the proper perforations intraoperatively and, thus, failed to correct the condition from which the patient suffered. The patient required unnecessary revision surgeries to repair the physicians’ negligence and endured pain and suffering and hospitalizations.
Background: A patient had visited a gastroenterologist for a routine screening colonoscopy as recommended for adults over 50. Despite having no complaints of pain or signs or symptoms of gastrointestinal distress, the gastroenterologist used a heater probe, a device that is inserted through the colonoscope that applies heat directly to the tissue to stop bleeding. The device was used to cauterize the patient’s blood vessels, as the gastroenterologist noted some bleeding during the colonoscopy. Postoperatively, the plaintiff complained of burning abdominal pain, but the gastroenterologist dismissed his complaints and assured him that they would resolve on their own. However, the patient’s symptoms failed to subside, and he visited the gastroenterologist in his office the following day with further complaints. The gastroenterologist diagnosed the patient with a probable perforation of the cecum, a part of the colon near the appendix, and referred the patient to a laparoscopic surgeon.
Subsequently, the patient presented to the laparoscopic surgeon for repair of three holes in his colon that had been punctured by the heater probe cauterization by the gastroenterologist. The surgery appeared to have no complications, and the patient was discharged to home after a few days. However, a day and a half later, the patient returned to the hospital with complaints of severe abdominal pain. He underwent subsequent laparoscopic surgery in which a perforation of the small intestine was found in a different area than the heater probe injuries by the gastroenterologist.
At trial, the patient presented expert testimony that a heater probe carries a risk of perforation of the bowel which is 30 times greater (1 in 40) than the risk of perforation in a regular screening colonoscopy (1 in 1,200). In addition, as the patient had a normal gastrointestinal history that did not include any gastrointestinal bleeding, the patient argued that this heater probe was unnecessary and risky. Furthermore, the patient also presented evidence that the laparoscopic surgeon failed to properly inspect the small intestine during his surgery, which caused additional problems and the need for subsequent surgeries.
The jury concluded that the gastroenterologist was 60% liable for the patient’s injuries and the laparoscopic surgeon was 40% liable for the same. It awarded $1.5 million to the patient for his injuries.
What this means to you: The root of this case might be similar to that of the first case presented in this supplement: complacency on the part of the gastroenterologist who performed the colonoscopy and the surgeon who was tasked with the ultimate perforation repair. Following eight weeks of evidence, testimony, and deliberation, both physicians were held accountable for their actions, which resulted in the plaintiff’s award of $1.5 million.
Although bowel perforation is a known potential risk to the patient as a result of the procedure, it cannot be discounted, taken lightly, or rendered in a complacent manner, regardless of the number of times a physician has successfully performed the procedure without incident. Such a risk factor must be included in the verbiage of the procedure consent form by stating the purpose, benefits, risks, and alternatives to the colonoscopy. The consent form must include clear, rational statements in a language and content that is easy for the patient to understand to ensure that the patient has the knowledge and comprehension to give consent without undue influence or duress. Most importantly, signed consent should be obtained by the person who will perform the procedure. Not only does this process meet the definition and requirements of informed consent, but it also provides the opportunity to develop and/or enhance the patient-physician relationship prior to the procedure. A solid, trustworthy patient-physician relationship reduces the risk of litigation in the event of an adverse outcome related to a procedure.
Alleged indiscriminate use of a heater probe, with acknowledgement of its significantly higher risk of bowel perforation, called for awareness and sensitivity on the part of the gastroenterologist as to the increased potential for harm to the patient during the procedure. In this case, when the patient complained of “burning abdominal pain” following the procedure, the gastroenterologist failed to consider a complication might have arisen and thus intervened, but instead assured the patient the burning pain would resolve without further intervention. Subsequently, the patient returned to the gastroenterologist within 24 hours with unresolved pain. The patient then was referred to a surgeon. Treatment time delay in the event of a bowel perforation leads to a greater potential of the risk of life-threatening complications.
Bowel perforation, the traumatic breach of bowel integrity, requires a detailed history and careful physical evaluation of the post-procedure symptoms and duration. Procedural information, patient symptoms, and the severity of same, plus timing of the procedure compared with the onset and duration of the symptoms, all serve to provide the surgeon with information necessary to determine the best intervention for the patient. CT scanning provides an accurate view of perforation, and blood tests serve to indicate bleeding. What is difficult to understand in this case is the reported history or diagnosis of not one but three identified perforation sites that should have placed the surgeon on alert for due diligence in examining the bowel for evidence of additional trauma. Use of CTs preoperatively, perioperatively, and/or postoperatively is one means that would prove beneficial in making certain all areas of injury had been properly identified and repaired or treated as appropriate and necessary. Unfortunately for the patient, his initial surgery resulted in additional surgery and hospitalization for missed repair of yet another site of perforation, perhaps due to the medical-surgical assumption or complacency that injury occurred in only one side or area of the bowel. Abdominal exploration to eliminate the possibility of other injury or injuries would have been wise and prudent in ensuring a positive outcome for the patient and reducing litigation risk for the surgeon. The jury held the gastroenterologist responsible for the initial procedural injuries, but also held the surgeon accountable for incomplete repair and additional pain and suffering as well.
It can be easy to become complacent and lose sight of the validity of complaints of pain or discomfort when such concerns are frequently expressed by patients to their physicians on a daily basis. To minimize the risks of complacency, misdiagnosis or failure to intervene, however, it is crucial to accept and document the patient’s complaint of pain and its severity as it is stated. In doing so, such recorded complaints form the basis for appropriate medical and/or surgical evaluation and mode of treatment. Thorough and accurate documentation of statements, evaluations, recommendations for treatment, follow-up, and outcomes is a key risk reduction strategy that might help to eliminate the red flag of complacency and focus attention on the patient and their safe care.
Index No, 3584/2009, New York (2013).