By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola
Los Angeles
Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services (2004-2013)
California Hospital Medical Center
Los Angeles
David Vassalli, 2016 JD Candidate
Pepperdine University School of Law
Malibu, CA
News: In 2011, a woman underwent laparoscopic surgery to increase her likelihood of becoming pregnant. During the procedure, and unbeknownst to the woman and her obstetrician, the woman’s small bowel was perforated. The woman went to the emergency department (ED) the day after the surgery complaining of pain in her lower abdomen and with a high fever and pulse. She was sent home without a CT scan or other test revealing her perforated bowel. On the third day after her surgery, she returned to the ED with a swollen abdomen and vomiting, and she was admitted to the hospital. After being in the hospital for two days, and a total of six days after her initial surgery, a CT scan was ordered and revealed the perforated bowel. As a result of her perforated bowel going untreated for six days, the woman underwent two subsequent surgeries to treat her condition. The woman filed a medical malpractice lawsuit against the obstetrician and hospital for which he worked, and she alleged that the obstetrician failed to timely diagnose her perforated bowel. There was no medical malpractice claim regarding the perforated bowel, as this risk was considered an acceptable one of the procedure. The hospital, which was held liable for the conduct of its staff, denied it was negligent for not diagnosing the perforated bowel earlier. The jury found that the obstetrician was negligent for the delayed diagnosis and the hospital was liable for $1.57 million, which consisted of $474,477 for past medical expenses and $1.1 million for pain and suffering.
Background: On Nov. 16, 2011, a 36-year-old woman underwent laparoscopic surgery to increase her likelihood of becoming pregnant. A known risk of this procedure is a perforated bowel, and during the surgery, the woman’s small bowel was perforated by her obstetrician. Neither the patient nor the obstetrician were aware of the perforated bowel at that time. The following day, the woman went to the ED complaining of pain in her lower abdomen and a high fever and pulse. There was no CT scan ordered or other test administered that discovered the woman’s perforated bowel. On Nov. 19, the woman returned to the ED with a distended abdomen and vomiting, which caused her obstetrician to admit her into the hospital on Nov. 20. It was still unknown to the obstetrician that the woman’s bowel was perforated. On Nov. 22, which was six days after the initial laparoscopic surgery and two days after being admitted to the hospital, a CT scan was ordered, which revealed the perforated bowel.
The six-day delay to diagnose the woman’s perforated bowel was alleged to be the cause of the woman having to undergo two additional surgeries to correct the perforated bowel and damage that resulted from the six days it went undiagnosed. Subsequently, the woman filed a medical malpractice lawsuit against the obstetrician and hospital for which he worked. The lawsuit alleged the obstetrician was negligent for failure to diagnosis her perforated bowel in a timely manner. The obstetrician was deemed an agent of the hospital, and in defense of the allegation that it negligently failed to timely diagnose the woman’s perforated bowel, the >hospital denied all negligence. Be-cause a perforated bowel is a known risk associated with the procedure, and the patient was aware of the risk, there was no medical malpractice claim for the performance of the surgery.
The jury found the obstetrician was negligent in not diagnosing the perforated bowel earlier and that the delayed diagnosis caused the woman’s injury. As such, the jury awarded the woman $1.57 million against the hospital. The award consisted of $474,477 for the woman’s past medical expenses and $1.1 million for her pain and suffering.
What this means to you: This case is an example of a missed opportunity for a hospital to correct its own mistake. The hospital in this case was not liable for the woman’s bowel mistakenly being perforated during the procedure. Rather, it was the actions that took place in the days following the surgery — mainly, the failure to recognize or administer proper tests to discover that an error was committed during surgery — that led to liability. The woman returned to the very hospital where she received the surgery and where she complained of abdominal pain, fever, vomiting, and tachycardia, all classic indications of a bowel perforation. These symptoms, plus the immediate history of laparoscopic abdominal surgery, should have elicited, at a minimum, an order for a CT scan of her abdomen on the first visit. That scan was the standard of care, and that standard of care was breached. The delay that followed elevated that breach to negligence because at a similar facility under similar circumstances, a CT scan would have been ordered on the first visit. The hospital and its staff had numerous opportunities during the patient’s two ED visits and subsequent admission to order a CT scan and other diagnostic tests to discover that the procedure performed by the obstetrician perforated the women’s bowel. Had the hospital ordered a CT scan immediately or at any time before the six days it waited, it could have mitigated the harm to the patient as well as its own liability. In light of the woman’s relatively minor injuries and the only fault assigned to the hospital being the damage that occurred in the time between the perforation and the discovery of it, the large jury award indicates that the jury found it particularly blameworthy for the hospital to fail to diagnose its own mistake. As such, hospitals and physicians should treat a patient returning with possible complications as not only a patient in need of care but also an opportunity to avoid or mitigate costly liability stemming from prior care.
This case also illustrates how informing patients of risks associated with a proposed medical treatment can shelter hospitals and physicians from liability caused by medical errors. It is known by physicians, patients, and jurors alike that medical treatments involve risks and complications. With this situation in mind, hospitals and physicians can shelter themselves from liability for known complications when the patient gives his or her informed consent regarding the risks of the procedure. Informed consent consists of the patient being reasonably informed of the nature of the procedure, the risks associated with that procedure, alternatives to the procedure, and the risks associated with the alternatives of a procedure. A patient need not be told every detail of every risk, but the patient is entitled to the relevant information a reasonable person should know to make a prudent decision regarding his or her own healthcare. In this case, the laparoscopic surgery did not go as planned and led to the patient’s bowel being perforated. However, because this was a known risk of the procedure and the patient gave her informed consent regarding that risk, neither the hospital nor obstetrician was held liable for the mistake. As this case illustrates, obtaining informed consent regarding the risks associated with a medical procedure can shelter hospitals and physicians from liability when complications arise from their care.
In obtaining informed consent, it is also advisable to be certain that you are dealing with someone who can provide that consent. If your patient is a minor or potentially mentally ill, there could be significant problems down the road as to whether informed consent was obtained at all. Be sure to understand and document the patient’s age, with special attention to patients who arrive through the ED. By definition, patients who arrive through the ED instead of a more standard referral from a general practitioner might not be able to provide consent for themselves. That said, there is generally a privilege to render emergency medical care without the patient’s consent if the patient is unable to speak for himself or herself. Be sure to understand the definition of an emergency situation in the state where you practice, as this might vary from state to state. Also, if consent is expressly rejected, the doctrine of implied consent cannot apply.
Finally, when obtaining informed consent, it is important to document not only the end result of the informed consent, but also the process that was undertaken with the patient. Talking a patient through a form and requesting the patient initial to express his or her understanding of each major point can be a useful way to accomplish this process. The informed consent form also might be structured in an ascending scale format adjusting for the intrusiveness of each of the procedures. One option in every medical case is to simply do nothing. This might be an option that offers little hope for success, but the patient should be informed of his or her right not to pursue medical care and the various risks of each option.
REFERENCE
Richmond County Superior Court, Georgia, Case No. 2013RCCV00615 (June 12, 2015).
