Perforation malpractice cases can be great cases for plaintiffs. But for some surgeries and some perforations, they can be extremely tough cases. A secretary in New York found that out last week when a jury found against her in her malpractice case.
- Settlement values for New York malpractice and injury cases
Facts of Perforation Case
Plaintiff went in to have her pregnancy terminated. Let’s face it objectively. Statistically, someone on the jury will likely be set against her from the opening bell.
Of course, the same juror who takes exception to the woman terminating her pregnancy will not hug the doctor performing the procedure.
The woman has pain and other complications after the surgery requiring an 11-day hospital stay. She contended the doctor perforated her uterus during the procedure but that it healed before anyone could detect it. She got an expert to say, not that the uterus should not have been cut, but that the doctor would have known of her injury if he had just checked before he closed her up and that his failure to do so was a breach of the standard of care.
The defense’s expert said you don’t need an instrumental inspection before concluding the procedure because, ironically, I guess, it increases the patient’s risk of sustaining a perforation. The doctor also claimed that perforation is a known risk of the procedure.
The “known risk” defense pretty much drives me nuts. I’m not saying the doctor should not mention this in defending the case. But it is always presented like it is a conversation-ender. It is not. The question is whether that known risk would have happened in the absence of negligence in this particular case. Jurors generally get this but occasionally pretend they don’t if they want to get the desired result. (Why? Because they are human beings. We all do this when making decisions in our day-to-day lives sometimes.)
Obviously, the physician had one more weapon here, arguing there was no perforation in the first place. In fact, they put on a pathologist expert witness to reject the “spontaneous sealing of a perforation” theory.
I root for plaintiffs sometimes by reflex. But, gun to my head, I would have sided with the defendant in this case based solely on the facts in the jury report I read.
- More thoughts on known risk defense
Perforation Malpractice Lawsuits
Perforation malpractice lawsuits arise when a healthcare professional’s negligence – almost always a surgeon – leads to perforation, or tear, in a patient’s organ or tissue, causing severe harm or even death. This could occur during various procedures, such as colonoscopies, laparoscopic surgeries, or other invasive procedures.
Perforations often happen without serious injury. But there is no question that perforation can have severe consequences. If not diagnosed and treated promptly, it can lead to peritonitis, a potentially fatal abdominal cavity infection, sepsis, or other life-threatening conditions. Moreover, the individual may require additional surgeries and prolonged hospital stays, resulting in significant medical expenses, lost wages, and pain and suffering.
What the Defendant Has to Prove in a Perforation Malpractice Lawsuit
Perforation malpractice lawsuits involve complex legal and medical issues like medical malpractice claims. To succeed in a lawsuit, a plaintiff must prove that the healthcare provider breached the standard of care, that this breach caused the perforation, and that the perforation resulted in harm or injury.
Firstly, the standard of care refers to the level of care a competent healthcare professional in the same field and situation would provide. This standard varies depending on numerous factors, including the patient’s health condition, the type of procedure, and the current medical knowledge in the field. Expert witnesses, typically medical professionals in the same specialty, are often required to establish the standard of care and whether the defendant breached it.
In the context of perforation, it’s worth noting that the mere occurrence of a perforation doesn’t necessarily mean malpractice occurred. Perforations can be a known risk of certain procedures, even when performed correctly. However, a malpractice claim may arise if the healthcare provider deviates from the standard care—for instance, by using improper technique or failing to recognize the perforation promptly.
Secondly, the plaintiff must establish causation. In other words, they must prove that the healthcare provider’s breach of the standard of care, not some other factor, caused the perforation and subsequent harm. This often involves intricate medical evidence and expert testimony.
Lastly, the plaintiff must show that they suffered harm due to the perforation. This could be physical harm, such as pain, additional injuries from the perforation, or the need for further medical treatment. It could also be economic harm, such as lost wages or medical expenses, or non-economic harm, such as emotional distress or loss of enjoyment of life.
Perforation Is a “Know Risk” – Makes Many Perforation Lawsuits Hard
Perforation is a known risk in certain medical procedures, especially invasive techniques, such as surgery or endoscopy. During these procedures, medical instruments are used to access internal organs or tissues, which can potentially result in a perforation or tear.
Some procedures where perforation is a known risk include:
- Colonoscopy: This procedure involves inserting a flexible tube with a camera into the rectum to examine the colon. There is a small risk of perforation during a colonoscopy, especially if polyps are removed.
- Gastroscopy: This procedure involves using an endoscope to examine the stomach and upper part of the small intestine. Perforation can occur if the stomach wall is accidentally punctured.
- Laparoscopic surgery: This minimally invasive surgical technique involves making small incisions and using specialized instruments to perform the surgery. While the risk is low, organ or tissue perforation can occur during these procedures.
- Certain gynecological procedures: Some procedures involving the uterus or cervix, such as dilation and curettage (D&C) or hysteroscopy, carry a risk of perforation.
Does that mean the doctor did not commit malpractice when there is a perforation and it is a known risk of the procedure? No. But it makes it harder to prove.
Easiest Perforation Cases to Win
Misdiagnosis of perforation can lead to severe complications, including infection, sepsis, and death in the most severe cases. When a patient’s condition worsens due to a misdiagnosis or delayed diagnosis of a perforation, these are the best perforation malpractice lawsuits. Because these complications usually come with symptoms – such as severe abdominal pain, fever, nausea, and vomiting – that warrant further investigation of the problem. If a healthcare provider dismisses these symptoms or fails to perform appropriate diagnostic tests, and the patient’s condition worsens, it may be a viable malpractice lawsuit.