Experienced surgeons still face malpractice suits
A new study refutes the commonly held idea that surgeons well beyond the "learning curve" are not much of a malpractice risk.
Despite their experience, laparoscopic surgeons still are sued for malpractice, with average verdicts and settlements of about $260,000, according to a study of malpractice cases involving laparoscopy by Brendan J. Carroll, MD, FACS, and Mathias Birth, MD, of Cedars-Sinai Medical Center in Los Angeles. The doctors presented their findings at the recent meeting of the Society of American Gastrointestinal Endoscopic Surgeons in San Diego.
Serious errors and injuries in laparoscopic surgery were far more common years ago when general surgeons began using the procedure. Lacerated arteries and severed ducts were the most common injuries of any consequence with laparoscopic cholecystectomy, still the most-used laparoscopic procedure in general surgery. The sharp increase in injuries, especially since the procedure was relatively trouble-free when performed in the traditional way, led many critics to conclude that laparoscopic surgeons were diving in before they were well-qualified.
Such errors were thought to be common in the surgeon’s "learning curve" and not expected to be a problem once the surgeon gained experience. Now that most laparoscopic surgeons are well-trained and experienced in laparoscopic cholecystectomy, the errors that led to malpractice cases should have diminished sharply.
Carroll and Birth report that is not necessarily so, however. Even the most experienced surgeons are sued for malpractice following laparoscopic cholecystectomy, and some of the cases have merit, Carroll says.
They studied 35 recent cases of malpractice suits for bile duct injuries sustained during laparoscopic cholecystectomy. Twenty percent of the injuries were recognized at the time of the original surgery, and 80% were not recognized until afterward. The average delay was 10 days. Failing to note the injury at the time of the original surgery is known to worsen the patient’s prognosis and increase the chance of litigation.
One surgeon had performed only four laparoscopic cholecystectomies at the time of the injury, but the average number was 40 procedures. One surgeon had performed 150 procedures.
Seventeen cases had been resolved by the time Carroll and Birth presented their study results, and there was only one defense verdict. The average jury award and settlement were almost the same $260,000 for the jury award and $256,000 for the settlement.
Carroll notes that, in the cases he and his partner studied, the existence of a laparoscopy videotape did not help the doctor’s defense. Routine videotaping of laparoscopy has led to a debate over whether the tapes should be retained, and if so, whether they are detrimental to the defense.
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