Two Fundoplications Lead to Nerve Damage
David M. Lang analyzes how a case involving a known complication of surgery ended with the largest verdict awarded in New York in 2011.
Why is this fair? Because the ultimate issue in this case was whether or not the vagus nerve was injured in the second surgery—not whether better material could have been chosen for the first. By contesting liability for the first surgery, defense counsel permitted the jurors to hear prejudicial evidence of arguably “shoddy workmanship,” which was irrelevant in determining whether or not the vagus nerve was injured during the second surgery.
What lessons can be learned from this substantial verdict? All aspects of a surgical technique should be supported by the standard of care. Where there are choices in operative or procedural technique, ensure that the chosen technique has a foundation in defensible evidence-based medicine. Jurors will expect clinicians to identify and preserve sensitive structures. While inadvertent damage to nearby structures may be a risk inherent in certain procedures, jurors expect the utmost care in protecting those structures.
Candidly, jurors will likely find the clinician responsible for an intra-operative iatrogenic injury. The consent form disclosing “known risks” is necessary, but at time of trial, it will not be an impenetrable shield. Proceed carefully and thoughtfully, with support from evidence-based literature whenever possible. —DML
