medical-legal cases goal: to review cases with potential medical- legal implications panel of...

Medical-Legal Cases

• Goal: to review cases with potential medical-legal implications

• Panel of surgeon experts discuss• Attorneys discuss • Determine legal issues• Determine options for prevention or improved

management

04/21/23 1

CASE #1

MISS 2010San Diego Marriott Hotel & Marina

San Diego, CaliforniaFebruary 22-27, 2010

CASE #1

Kathleen M. McCauleyGoodman Allen & Filetti, PLLC

4501 Highwoods Parkway, Suite 210Glen Allen, Virginia 23060

[email protected]

CASE STUDY

• Ms. Smith, WF, age 33, 69” tall, 287 lbs, BMI 42.4

• Med Hx: Type II DM, hypothyroid, Depression (disabled from work and ECT), endometriosis, DJD, nocturia, IBS, SOB and daytime sleepiness, migraines, hypercholesterolemia

CASE STUDY

• GYN surgery to remove cyst, Lupron• Chronic pain – back, elbows and knees• Psych admission 2001, 2002• ECT • Foot and wrist Fx• Scoliosis of spine (managed w/o surgery)• KDA: Sulfa and Wellbutrin

CASE STUDY

• Pre-op medications:

– Amaryl – Gluchopage– Avandia– Synthroid– Depakote– Ambien– Zoloft

– Ovral– Singulair– Risperdal– Trazadone– Xanax– Lortab– nebulizer

CASE STUDY

• OGBP /c division and Roux-en-Y gastrojejunostomy and chole

• Needle Bx of liver• No complications• Inpt 4 days (completed 3 day pathway)• UGI on POD #3 - WNL

CASE STUDY

On D/C:• Afebrile• Fully ambulatory• Tolerated and understood diet• Good wound healing• Flatus• Clear lungs• Normal UGI

CASE STUDY

• Day 3 at home, call to surgeon’s office. More pain in incision and L side

• N/V• Retching• No fever• Incentive up to 750-1000• Consult with on-call General Surgeon• Put on Lortab and Phenergan

CASE STUDY

• Day 4 at home, call to on-call General Surgeon #2

• N/V and continued pain

• Advised to call ofc or to ER

CASE STUDY

• Call to ofc 0835, note in chart from nurse

• N/V most of night

• L side pain

• No fever

• Advised to go to ER

CASE STUDY

• To ER, triaged and evaluated by ER MD• Unable to tolerate anything p.o. • N/V, abd pain• T-98.6 P-140 R-28 BP 131/87• CXR - r/o PE• CT of Abd and Pelvis• Amylase, CBC, hep profile, lipase, BMP

CASE STUDY

• WBC 21.3; platelets 593• Creatinine 0.8; Albumin 3.4

• General surgeon in to evaluate – plan to assess for PE v. Abscess v. Leak

CASE STUDY

• CT revealed L subphrenic abscess

• Pt. adm: on MSO4 PCA and Phenergan

• IV fluid replacement and antibx

• Percutaneously drain in the a.m.

CASE STUDY

On admission:

P-100 R-18 BP-142/82

Pt. comfortable

CASE STUDY

• In the early a.m., MD called

• Apical P 172-106 R – 38

• To OR

CASE STUDY

Pre-op:

P- 180 R-36 BP 96/50 SaO2

Diaphoretic, pale, cool

c/o N/V

Apprehensive

CASE STUDY

On exploration:

Gastrojejunostomy was intact

No anastomotic leak

No leak from the excluded stomach

CASE STUDY

• Hole either very distal esophagus, or

• Proximal pouch

Discussion

• Lawsuit: failure to properly diagnosis and treat complication of RYGB.

04/21/23 20

21

MISS 2010San Diego Marriott Hotel &

MarinaSan Diego, CA

February 22-27, 2010

Case #2

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Case #2 Background• A 42 year old woman with a BMI of 46 presents from out of town

as she has searched the web and decided you will be her choice as a surgeon – she wants an expert in laparoscopic Roux-en-Y gastric bypass

• She has a history of hypertension and obstructive sleep apnea, both satisfactorily, treated but wants to improve her quality of life

• She consulted a gastroenterologist 5 years ago because her liver function tests were abnormal and was reassured that she has fatty liver and should try and lose weight

Preoperative - assessment • She is married with children ages 9,11 & 14• She is a self employed IT consultant and wants to self-pay for

the procedure• She has extensively investigated the procedure and its risks• You find her well motivated, intelligent and generally a good

candidate for LRYGB.• You describes the surgical risk in detail and explain that there

is a 0.3% mortality with the surgery and your results are consistent with this

• Physical examination is unremarkable• Her Blood pressure is well controlled 128/75• She is using her CPAP therapy and finds it helps

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You arrange routine pre-operative evaluations• Nutritionist• Psychologist • Laboratory tests

• You tentatively arrange for her to be admitted for her RYGB in 4 weeks

• Because she has to fly in for review you do not plan review before admission to hospital – but will call if evaluations are of any concern

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Hospital admission

• She is admitted to hospital on the morning of the procedure and is assessed by the anesthesiologist

• You also see and chat with her briefly before going to the OR. She asks about her lab results and you recall a high ferritin and abnormal liver enzymes consistent with fatty liver disease

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Operating room

• You arrive in the OR she is asleep and the anesthesiologist comments on her sick liver

• You explain this is common with bariatric surgical patients and take a closer look!

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Operating room• Liver function tests

– Albumin 35 g/l– Globulin 36 g/l– Bilirubin** 103 umol/l– GGT** 274 iu/l– ALT* 74 iu/l– AST* 149 iu/l– Alk Phos* 199 iu/l

• How would you handle the case now?

Debate

• Surgical choice– Wake her up and reassess– Take a look and see if surgery is feasible– Proceed with the procedure

• What would you do and why?

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Debate

• Surgical view– What is the concern?– How serious is it?– Has risk assessment changed?– Is RYGB surgery still appropriate?– What are the pros and cons with proceeding?

• Medico-legal concerns?– Informed consent – Has anything changed?– Is this the correct procedure?

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Case Study – Abnormal laboratory results preoperatively• Laboratory results

– Platelet count 89 x 109/l* Low– INR 1.4* High– Ferritin 775 mg/l* High

• Liver function tests– Albumin 35 g/l– Globulin 36 g/l– Bilirubin** 103 umol/l– GGT** 274 iu/l– ALT* 74 iu/l– AST* 149 iu/l– Alk Phos* 199 iu/l

• Renal Function and electrolytes normal– Creatinine 77 umol/l

Operating room

• The patient is asleep and you suspect cirrhosis• NASH is the likely cause• RYGB is an effective therapy

• You elect to have a look with the laparoscope to see if surgery is feasible?

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Operating room


• You elect to have a look with the laparoscope to see if surgery is feasible?

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Operating room


• You elect to have a look with the laparoscope to see if surgery is feasible

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The procedure

• Laparoscopy is performed– The liver is small can cirrhotic– These is no ascites a the no evidence of enlarged

veins in the area of the GE junction.

• You elect to proceed with the surgery– She wants the procedure and weight loss is likely

to be the best therapy?

• The surgery is uneventful

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The procedure

• Laparoscopy is performed– The liver is small can cirrhotic– These is no ascites a the no evidence of enlarged

veins in the area of the GE junction.

• You elect to proceed with the surgery– She wants the procedure and weight loss is likely

to be the best therapy?

• The surgery is uneventful

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Post operative care

• You chat with her afterwards and tell her the surgery went well, but you found her liver was cirrhotic

• You explain that a biopsy was taken and the likely cause is NASH – weight loss – indeed RYGB is good therapy for NAFLD

• Day 2 clearly she has developed jaundice– Bilirubin 201 INR 1.3 and albumin 30 g/l

• Her condition remains stable and she is discharged day 5. Liver enzymes are stable, INR 1.4 and Albumin 28 g/l

• Follow-up plans the nurse will can in a week (phone contact) and she will fly back for a surgical review in 6 weeks.

• A letter was sent to her PCP but no mention of the liver issue

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Day 11 – Phone call from husband

• Her husband contacts the practice by phone and talks with the nurse

• He is concerned that his wife remains very tired, is still yellow and has had a small black bowel action? She had seen her PCP and had been given some antibiotics for a urinary infection.

• She is advised to see her local PCP if bleeding continues, but that the appearance in the motion is may just be blood loss generated at the time of surgery

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Day 12 – Phone call from husband

• She collapsed this morning with abdominal pain and has been taken to a local emergency department. She is bleeding internally and they are taking her to the OR to try and stop the bleeding

• She was found to have a perforated first part of the duodenum. This was repaired.

• She died 2 days later in the Intensive Care Unit of liver and renal failure

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Model for end stage liver disease – MELD scoreModels mortality risk associated with alcoholic hepatitis

• MELD score is 17 (CPS = 7) - post-operative mortality is therefore estimated to be 20% at 90 days

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Case #3

04/21/23 Arceo-Olaiz et al. Surg Obes Relat Dis. 2008;4(4):507-11 40

•45 yr old woman, initial BMI 42, HTN, DJD

•LAGB uncomplicated

•At 2 years, BMI 28, 8 adjustments, 8.5 ml in band

•No side effects except moderate GERD

Case #3


•Pt calls office- “heart burn, epigastric pain”, RN tells her to take OTC antacid, call back if not better.

•Next day: calls back. “pain getting worse, with nausea, slight emesis. RN says, go see PCP for PPI perscription. Pt. calls PCP, starts prilosec

•Next day: pain worse, more emesis. RN- eating to quickly, come to office at end of week for adjustment

Case #3


•Pt. goes to ER that night with extreme pain – UGI- slipped band with obstruction

•Goes to OR. Necrotic Stomach secondary to slipped band. Resection and esophago-jejunostomy.

Lawsuit: surgeon and practice sued due to failure to recognize impending obstruction and provide timely treatment. Are your office staff properly trained to answer patient calls?

Case #4

• 45 male, BMI 48, HTN, T2DM, HPL, OSA• Standard orientation• Psych eval = nl• Nutrition eval = nl• Plan: LRYGB• General consent signed


Case #4• Surgery – 3hrs (#15th case by surgeon), 3rd case on

Friday, finishes at 7pm. Pos intraop leak test, surgeon oversews leak

• POD #1(Sat) – HR 100-115, SBP 160-180, T 100 UGI read as normal (quality fair). Clears started.

• Surgeon leaves town for 5 day vacation. Covering surgeon is gen surgeon. Knows the UGI is normal.


Case #4

• POD #1(Sat night) HR 120-130, T 99, SBP 160-190, increasing pain requirement, covering surgeon called, orders increase in pain meds.

• POD #2 (Sun AM) HR 120-130, T 100, SBP 160-190, SOB,O2 sat 92%, cough, covering surgeon examines patient, orders CXR – atelectasis/pneumonia, orders abx, O2 NC, pulmonary toilet


Case #4• POD #3 (monday) HR 130-140, SBP 110-120,

continued SOB, O2 sat 90%, covering surgeon in OR all day till 7pm when he examines patient. Orders CT Scan.

• POD#4 Tuesday HR130-140, SBP 90, CT scan 4am shows , large fluid collection LUQ, ?leak patient goes to ICU, for stablization, fluids

• POD#4 1 pm, goes to OR. Lap-open exploration extensive peritonitis, drainage, closure


Case #4• POD #5, Multisystem organ failure, renal

failure, high dose pressors required.• POD #6-7. Continued severe sepsis. Surgeon

returns from vacation- returns Patient to OR. Continued leak, peritonitis, more drainage.

• POD #8. Patient dies from MSO4.


Lawsuit: failure to timely diagnose and treat leak after RYGB. Miscommunication between surgeon and covering surgeon. Was covering surgeon properly trained?

Case #5


•48 yr old male, BMI 47 DJD

•Standard eval

•LRYGB-150cm antecolic Roux-limb,

•no complications

•J-J made first, then GJ with EEA

•10th LRYGB by surgeon

Case #5


•POD #1 UGI “normal”

•POD #2, significant Nausea and vomiting – Abdominal x-ray shows dilated duodenum and gastric remnant

•Exploratory laparotomy:

Case #5- Roux-en-O


Case #5


•Outcome

•Aspiration pneumonia

•Wound dehisence

•Leak at new J-J, then leak at GJ

•Gastro-gastric fistula, enterocutaneous fistula

•Closure of fistulas and hernia repair 6 mo laterLawsuit: failure to perform operation according to standard of care. Defensible? Action surgeon could have taken to avoid law suit?

Case #6

• MS: 40 year old Female, 392 pounds, 5’4”, BMI 67

• LAGB 2005: “Difficult”

• 6 weeks first fill was difficult

• 2 weeks later port infection -removed


Case #6

• Recurrent wound sepsis

• Multiple operative procedures at two additional facilities

• OHSU 2+ year post LAGB

• Continued purulence from LUQ incision, tubing in abdominal wall per CT

• Debridement, excision of tubing


Case #6

• 4 year post LAGB requests new port

• BMI 67, T2DM, OSA

• Plan: Laparoscopy to retrieve tubing, endoscopy to r/o erosion, new port


Case #6

• Operative finding: dense adhesions LUQ

• Conversion to open, retrieve tubing

• Connect new port, flush returns thin brown fluid

• Gram stain: G-rods


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MISS 2010San Diego Marriott Hotel &

MarinaSan Diego, CA

February 22-27, 2010

Case #7

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Stevens & Lee

51 S. Duke Street

Lancaster, PA 17608

717-399-6639

[email protected]

James W. Saxton, Esq.

58

The Debate• Weight loss surgery is a recognized predictive risk of gallbladder

disease. Your options:

• Perform routine cholecystectomy in all patients having a weight loss procedure

• Assess for gallstones routinely and perform cholecystectomy if stones are present, even in the absence of symptoms

• Assess for gallstones only when symptoms are present, treating only symptomatic patients

• Provide six-month course of therapeutic pharmaceutical intervention post-operatively

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Case Study Background• A 38 yo woman with a BMI of 41 undergoes bariatric

surgery, without any discussion about the risk of gallbladder disease or documentation of that risk

• She had no insurance and paid for the procedure with her savings

• She talked to you pre-surgery about her desire to one day have children

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Case Study Post-Surgery

• Despite your telling her pre-surgery that she should wait at least one year post-surgery before trying to get pregnant, she became pregnant 4 months after the surgery

• During the pregnancy, she developed cholecystitis that resolved

• Post-delivery, she began to experience cholecystitis with colic

• She alleged she could not work due to the gallbladder disease

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Case Study - Cholecystectomy• She underwent a laparoscopic cholecystectomy by the bariatric surgeon;

everything seemed to go fine; she was discharged home that same day

• On Friday, her husband noticed that her skin had a yellow tint to it. She also felt abdominal pain and had difficulty breathing so she called your office that evening

• She received a prompt return call from you who instructed her to go directly to the ER. You did not document these instructions because it was after hours

• Unfortunately, the patient did not go to the ER, and your office was notified on Monday that the patient had expired at her home on Sunday

• The death certificate listed that the cause of death was due to an undiagnosed common bile duct injury

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Her husband files a lawsuit alleging:• The failure to perform a cholecystectomy at the time of the WLS was

negligent (had she known of the option, she would have elected to do so)

• She was not informed of her choices, which led to the loss of joy associated with her long-awaited pregnancy and birth of her newborn

• Negligence in the performance of the cholecystectomy and in cutting the common bile duct

• Desired compensation for the initial bariatric surgery, the gall bladder disease surgery and complications, and wrongful death damages

And you now experience what it is like to be sued…

Discussion


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You Experience• Self-doubt

• Self-worth issues

• Difficulty sleeping and sleepless nights

• A propensity to become angry quicker than normal (with your family, staff, and patients)

• A feeling of being out of control

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Remember the Clinical Debate

• Gallbladder management in the WLS patient

• Assess for gallstones routinely and perform cholecystectomy if stones are present, even in the absence of symptoms• Perform routine cholecystectomy in all patients having a weight loss procedure • Provide six-month course of therapeutic pharmaceutical intervention• Assess for gallstones only when symptoms are present, treating only symptomatic patients

• No clear answer on the best approach

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Coupled with the Aggravating PL Circumstances

• Death of a young woman with newborn

• Self-pay patient

• Failure to document after hours call

• Lack of acknowledgement by patient of pregnancy discussion

• Lack of documented risks of surgery including gall bladder disease

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Self pay• Get documented patient

understanding of patient financial responsibility– Not only the surgery, but

also any potential complications

• Provide the patient with a list of costs (anticipated and potential)

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Spouse Acknowledgement of Risks• Spouse: “She didn’t

understand the risks; if she had, she would not have had the surgery; or she would have had you remove the gallbladder during the bariatric surgery.”

• What can you do?– Family advocate/Spousal

acknowledgement

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Procedure-Specific Informed Consent Form: BariatricAll risks

Witn

ess

Intro

Patient

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Addressing the Gallbladder Disease and Pregnancy Issues

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Procedure-Specific Informed Consent Lap Chole

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After Hours Calls

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Strategies for Documenting After Hours Calls

• Hand held dictation device• Dedicated telephone line to

answering machine for dictation• Telephone note pad (kept at

bedside)• Use of office voice mail system

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Litigation Stress• Data:

– 70% to 86% of physicians surveyed reported tension, depression, frustration, and anger

– 16% experienced physical illness or exacerbation of existing one– (Hofeldt. “Physicians on Trial- Self-Reported Reactions to Malpractice Trials.”

Western J. of Med. (1988))

• Our Analysis: The psychological impact on surgeons who have experienced post-op leaks with patients undergoing bariatric surgery– Clearly emotional– Under stress and can impact care– Support systems needed: Psychologists can help– Disclosure programs and event management programs validated (healing

processes)

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