Following the surgery, all health-care providers should document abdominal examinations and findings at regular intervals, and should note that the patient was assessed and offered no complaints of nausea, vomiting, abdominal pain, or fever.
Should a perforation occur, finding and repairing it at the time of the original surgery is critical in preventing a lawsuit, since, in these cases, no additional injuries would be sustained by the patient—hence, no legally cognizable damages.
DR. LINDHEIM:Is our liability different if a bowel perforation is detected postopera-tively within the standard of care?
MR. WEITZ: Some physicians do not believe perforation of the bowel itself is negligent, but a failure to identify and remedy it prior to completing the original procedure is.
Of course, the timing of identifying the bowel perforation after surgery may determine whether any damage can be attributed to the delay. If the perforation is identified soon after surgery and easily repaired, it will not be easy for the patient to establish a case of additional harm.
Listen to a patient’s complaints
Another important point: Many plaintiffs complain that when they called their physician with postoperative complaints, they were ignored. One of the best liability-avoidance measures is to actively listen to patients and be responsive to their needs, even if treatment will remain the same.
As for the use of photos and video as defense, wholesale reliance on them and pathology reports is risky. Depending on how this evidence is presented, a jury may conclude the physician chose not to photograph the site where the injury occurred or intentionally took tissue samples from a different area. If a jury senses a cover-up, the defense can be undermined.
Case 3: air embolism
“Elaine” is a 35-year-old mother of 1 with secondary amenorrhea for 6 months. She delivered her son vaginally at term, but had bleeding 5 weeks postpartum that required D&C for retained placenta. After a hysterosalpingogram reveals severe Asherman’s syndrome, she is scheduled for hysteroscopic adhesiolysis.
At surgery, the cervical canal is serially dilated. On entry into the uterine cavity with a 5-mm hysteroscope, severe adhesions are visible throughout the entire cavity. Through the operating channel of the hysteroscope, a bipolar tip is used for lysis, with saline distending medium.
Shortly into the procedure, the anesthesiologist observes a decrease in oxygen saturation and a drop in end-tidal CO2, as well as hypotension. An air embolism is suspected. The gynecologist immediately stops the procedure while the anesthesiologist repositions Elaine in the left lateral decubitus position and administers 100% oxygen. The cardiac team is called, and Elaine requires invasive monitoring and catheterization of the subclavian vein. She fully recovers within 24 hours and is discharged from the hospital.
Clinical signs of collapse
DR. WILLIAMS: The most common sign of impending cardiovascular collapse is a sudden drop in end-tidal carbon dioxide, as seen in this case. Both the surgeon and the anesthesiologist acted properly.
MR. WEITZ: I assume the procedure was thoroughly discussed with the patient during the consent process, with the risk of gas emboli emphasized, and that this discussion was documented.
Advise the patient of risky techniques
If hysteroscopic placement or repetitive removal and replacement of the hysteroscope can create air bubbles, the physician should clearly document why the patient should be exposed to this risk. Most times, as in this case, there are valid explanations, but without a notation in the record, the physician is exposed to legal risk.
Standards are a double-edged sword
Perhaps industry organizations such as the American College of Obstetricians and Gynecologists should consider creating industry-wide standards for the proper use of hysteroscopes. Even with a negative outcome, including significant injury, it is difficult to prosecute a case when the medical community recognizes that the steps followed by the physician adhered to the standard of care.
Another benefit of industry-wide standards is that they provide practitioners and health-care insurers with a common framework by which to evaluate the necessity and effectiveness of hysteroscopic procedures.
MR. LINDHEIM: There are both positive and negative aspects to standards. When they exist, they increase the level of expectation, usually thought of as a minimum. When this minimum is adhered to, the risk of medicolegal liability is low. But when care deviates from it—regardless of the reason—the patient can argue that malpractice occurred. Conversely, without standards, the physician’s actions are viewed as a “judgment call,” and it is harder to argue that a deviation occurred.
Dr. Lindheim is a speaker and nonpaid consultant for Cooper-Surgical. The other panelists report no relevant financial relationships.