Physician Legal Review & Commentary: $19.5M awarded for death after failure to seal colon following benign polyp removal

News: A woman’s family has been awarded $19.5 million against a surgeon who improperly performed a procedure on her colon to remove a benign polyp. The procedure resulted in complications that eventually led to her death. In 2008, a benign polyp was discovered in patient’s colon during a routine colonoscopy. To remove the polyp, a surgeon resected approximately 2½ feet of her colon instead of simply removing the polyp through a minimally invasive endoscopy. The surgeon failed to completely close patient’s colon following the resection, which resulted in the leaking of fecal matter into her body cavity. Patient developed sepsis and required multiple revisionary surgeries before eventually dying from complications related to the infection.

Background: Patient was 57 years old and had a significant medical history including renal disease, chronic back pain, and four prior abdominal surgeries. A colonoscopy in 2008 revealed a non-cancerous mass on her bowel. A surgeon argued that patient requested the mass be removed by resection because she was afraid an endoscopic or colonoscopic approach would result in a perforation. The patient’s husband, who was present at this appointment with the surgeon, claimed it was the surgeon who suggested a resection and his reason being that it was the easier approach.

Ultimately, a resection was performed. The surgeon encountered difficulty during the resection due to the multitude of adhesions within the plaintiff’s abdominal cavity. The surgeon’s operative report indicated that the difficulty of the surgery, despite being aware of patient’s prior abdominal surgeries, was unexpected. The adhesions encountered during the surgery were present because of patient’s significant abdominal surgical history. The surgeon resected 2½ feet of patient’s colon and surgically reconnected her bowel. During recovery, patient experienced severe abdominal pain, elevated blood potassium, sinus tachycardia, hypertension, and decreased urination. An EKG indicated a thickened mitral valve, and a heart murmur was observed. At times, the patient was febrile. Her symptoms included a fever over 101 degrees, lethargy, confusion, and disorientation.

Eventually, the patient was transferred to the intensive care unit. While in the intensive care unit, her wound began draining purulent odorous fluid, and she was noted as appearing toxic. Her white blood cell count continued to increase. A CT scan of the patient’s pelvis indicated a build-up of fluid. Two weeks after her resection, a different doctor performed surgery to correct intra-abdominal sepsis and gastrointestinal bleeding. Upon opening patient’s abdomen again, the doctor discovered that the original surgeon had failed to completely seal the patient’s terminal ileum and right colon.

During this procedure, the patient was provided a colostomy bag, but due to the severe infection and swelling, her abdominal cavity was left open. It took over one month for her condition to improve to a point where doctors were able to surgically re-close her abdominal cavity. Three months later patient left the hospital for a long-term care facility. During this stay, the patient required another bowel resection, abdominal washouts, debridements, and suffered from a right occipital infarct, seizures, respiratory failure, and acute renal failure. Almost two years after her initial resection for the removal of a benign colon polyp, the patient died.

Patient’s husband brought suit for medical-malpractice, wrongful death, and loss of consortium on behalf of him, their two children, and patient. Their counsel claimed the surgeon failed to perform a preoperative workup on patient, failed to obtain proper consultations, failed to appreciate the complexity of the surgery, failed to close patient’s bowel, and failed to diagnose the breach of the bowel and resulting infection in a timely manner. Counsel for the surgeon argued there was no malpractice and that patient had requested the resection over the endoscopic or colonoscopic approach despite the risks involved. The jury returned a verdict of 11-1 for patient. The patient’s family was awarded $9 million for her medical malpractice claim and $10.5 million for her wrongful death claim.

What this means to you: In a surgical case involving alleged improper surgery, conventional wisdom would usually conclude that the surgeon in the role of “caption of the ship” would be the main target. It is interesting to note that in the above case, the jury determined negligence against the medical center and the surgeon.

In this case, the surgical procedure itself came under question. When a surgical procedure itself comes under question, the informed consent and the process by which the procedure was agreed upon must be diligently documented. If as in this case, the surgery was an elective procedure, the appropriateness of the procedure must be documented as well. The informed consent must be carefully crafted to memorialize in detail the risks and benefits as well as all of the known complications associated with the procedure. If the procedure that is agreed upon is the more invasive procedure or a procedure other than the more common procedure, it becomes even more important to meticulously document the entire process. Obviously, expert witness opinion would be crucial in such a situation. In a situation where the rationale for choosing a type of procedure becomes an issue, this opens the doorway for misunderstanding between patient and physician. If there is more than one defendant involved in the case, it creates an opportunity for finger-pointing.

Whereas the surgeon is likely to be held responsible for what takes place in the operating room during the procedure, the preoperative work up, and even the postsurgical treatment, those people doing the day-to-day postsurgical monitoring after the procedure can be exposed to allegations of failing to appreciate changes in blood pressure, changes in temperature, complaints of pain, etc.

When a patient suffers postsurgical complications, the manner in which the complications are treated can become as important, if not more important, than the complications themselves. If the complication that the patient sustained is listed on the informed consent as a recognized complication associated with that particular procedure, it will be very helpful in defending the case. Instead of focusing exclusively on the surgical technique, it might shift the focus of the case to whether the signs and symptoms of the complications were diagnosed and treated in a reasonable and timely manner. Here is where the hospital becomes vulnerable to allegations of negligence. If anyone in the care team believes that symptoms are not being appreciated, they must feel free to express their opinion to challenge treatment decisions without fear of incrimination. More importantly, they must also know the process for the chain of command so that they can communicate their concerns to a higher level if they believe that their concerns are being disregarded. While this advice might sound simple enough in theory, the reality is that it takes courage to question someone who is higher up in the hierarchy. Even though we strive for a culture of safety and a just culture, a nurse still has to be able to shrug off comments such as “and what medical school did you graduate from?” One technique for dealing with difficult communication situations might be drills or rehearsals. Another more specific technique might be role playing. Although snide remarks should not be tolerated, they do occur. Role-playing exercises help prepare for difficult communication situations and can help take some of the sting out of inappropriate remarks by scripting responses to such remarks. Patient safety is a team process. People must be encouraged to express opinions and ask questions. A good motto is “the only stupid question is the one that has not been asked.”

Reference

2009 WL 9046824 (Pa.Com.Pl.), No. 004756 (2013).