- duty arising out of the physician-patient relationship,
- a breach of that duty (ie, deviation from the accepted standard of care),
- a link between that breach of duty and
- a specific harm.
MR. NEWMAN:In this case I believe the standards of care have been met. There is no legal case here.
MR. WEITZ: I agree. The complications that occurred did not result from deviation from the standard of care, but from the patient’s reaction to the procedure.
Should a law firm decide to proceed with this case, which seems doubtful, it would be hard to show any damage the patient suffered as a result of any alleged improper conduct.
Case 2: later finding of bowel injury
“Cathy” is a 40-year-old mother of 2 who is found to have a 10-mm polyp as part of her evaluation for abnormal uterine bleeding. She is scheduled to undergo hysteroscopic removal of the polyp with endometrial ablation. However, her uterus is severely retroverted, making serial cervical dilation necessary for entry. During the surgery, a pressure of 90 mm Hg is required for optimum visualization. The polyp is easily removed with a grasping instrument, and endometrial ablation is performed with a monopolar rollerball using 2.7% sorbitol for distention. Cathy is discharged the same day without complications.
Two days after the surgery, she calls with complaints of nausea, vomiting, and abdominal distention. She is told to go to the emergency room, where upright abdominal radiography shows free air in the abdomen. Cathy undergoes an exploratory laparotomy for small bowel perforation with end-to-end anastomosis and is discharged 1 week later without sequelae.
Factors that raise risk of perforation
DR. WILLIAMS: Uterine perforation is the most common complication of operative hysteroscopy. It is especially likely with cervical stenosis or severe anteflexion or retroflexion of the uterus; with lower-segment myomas or intrauterine synechiae; and when the operator is inexperienced.3-5
When perforation occurs without an electrical source, hysteroscopy usually is discontinued because of the inability to achieve uterine distention.
Terminate the procedure even if the perforation is small and distention is possible, since fluid will be lost into the peritoneal cavity. Usually, the patient can be observed and discharged home if there is no vaginal or intraperitoneal bleeding.3,4
When perforation occurs during use of electrical energy, laparoscopy is advised to rule out bowel injury.
Patients with unrecognized bowel injury after hysteroscopy frequently are not symptomatic until 2 to 10 days after the procedure due to the thermal nature of the injury, as this case illustrates.
Value of a photographic record
In this case, unrecognized perforation with later bowel injury could raise questions about adequate visualization throughout the case. Use of video or photography may be helpful to document that visualization.
Bowel injury also can occur in the absence of uterine perforation. With lower coagulating currents, it may take longer to achieve the desired endometrial effect, and this can sometimes lead to transmural thermal damage. This heat effect has been reported to cause bowel injury.6,7
Justify procedures in advance
DR. LINDHEIM:An expert also might question whether the ablation was necessary. Was the option of doing a simple polypectomy versus doing both a polypectomy and ablation discussed and documented?
DR. WILLIAMS: With such a small polyp, it was reasonable to perform the ablation, provided consent was given and recorded.
DR. LINDHEIM: What is the legal perspective on this issue?
MR. LINDHEIM: The physician will have to explain why it was necessary to perform an ablation when the treatment possibly required only simple polyp removal. Is it documented that the patient was refractory to medical therapy?
Whenever surgery entails any complication or additional procedures that could have been treated with simpler, less invasive methods, the surgeon is exposed to scrutiny, questioning, and accountability. For this reason, more is better than less when it comes to documentation.
MR. WEITZ: Most juries weighing treatment options are sympathetic when the patient testifies that she chose the procedure recommended by her physician. Thus, the doctor may be held accountable if something goes wrong with a riskier procedure.
If the physician wants to use informed consent as a defense, he or she should consider giving all patients articles about the various procedures so a woman cannot complain she was inadequately informed.
MR. NEWMAN: In a case like this, the plaintiff’s attorney likely would focus on documentation in the operative report as well as in the operative, anesthesia, postoperativecare, and pathology records.
Does the case have merit?
It depends on the type of injury and when it was found.
The location, size, and nature of the perforation, as described by pathology, may be pivotal in determining whether this case has merit. If the perforation can be described as a hole, tear, or laceration and is larger than a few millimeters, the doctor will have a harder time defending this case, since no perforation was discovered at surgery or before the patient’s discharge.