Medical Malpractice Article: Botched Laparoscopic Surgery

A Personal Injury Case Study

This medical malpractice article illustrates some important legal issues involved in med mal cases. We review different aspects of the case including the malpractice incident, damages, liability, negotiations, and the final case resolution.

The Incident...

Kelly was going to have a routine surgery to remove her Gall Bladder performed by Doctor Littleman. It was to be done laparoscopically in the surgical center of her doctor’s office. Kelly’s doctor did not give her any pre-operative instructions verbally or in writing, therefore Kelly did not know if she could eat or drink before the procedure.

She called the doctor and spoke with a nurse who advised that it was fine to have the procedure done, even on a full stomach. That morning, Kelly enjoyed a large breakfast with her husband before he drove her to the surgical center for her procedure. Dr. Littleman did not ask about whether she had eaten, and instead began the procedure as scheduled.

During the operation, Kelly had an adverse reaction to a medication prescribed to her and administered by the anesthesiologist. She had listed this medication as one to which she was highly allergic in her initial consultation with Dr. Littleman. The reaction caused her to vomit violently which she would not have done had she not eaten.

Liability...

In this med mal case, liability is multi-fold. First, you have the doctor who failed to advise the patient that she should not have anything to eat or drink past midnight the previous evening. He also failed to note this in her chart and to adequately instruct his staff.

Even though the nurse told Kelly that eating was okay, the doctor was ultimately responsible for the proper supervision of his staff members. Therefore the doctor is liable for his own negligence as well as negligent supervision of his employee.

Next you have the anesthesiologist. They are charged with reviewing the patient's chart before administering any medication as well as asking a series of questions of the patient. Here, he failed to do either. Had he done so, he would have learned that Kelly had a full stomach and that she was allergic to the medication he was going to prescribe, so he too is liable for his negligence.

Finally, you have the surgical center where the operation occurred. They extend "privileges" to doctors to use their facilities. In this case, the surgical center would be vicariously liable for the actions of both the doctor and the anesthesiologist.

Injuries...

Kelly suffered a very painful surgery. The surgical utensils used for the laparoscopic procedure were jarred when Kelly jerked violently causing the doctor to nick her stomach with the sharp object used to remove her gall bladder.

This caused internal bleeding and stopping it required an additional surgery as well as increased healing time.

Negotiations...

The insurance for the hospital agreed to cover all of Kelly’s losses and seek indemnification (or reimbursement) from the individual doctors.

Kelly’s second surgery was to cost $12,600 and her relative pain and suffering was valued at $35,400. Kelly did not need to hire an attorney or negotiate.

Final Settlement...

Due to the circumstances, the insurance company for the hospital did not negotiate or haggle with Kelly and they settled her case for her first offer of $48,000 through their in-house legal department.

Because the in-house legal department was employed full-time at the hospital, their major incentive was to get rid of the claim early as opposed to arguing over what was clearly the doctors’ fault.

Important Points...

Sometimes one party will take full responsibility for the claim and seek indemnification on their own. If not then the plaintiff will have to pursue each liable party individually.

As demonstrated in this medical malpractice article, if a case is particularly egregious the insurance company might be compelled to settle for the first demand made.

In-house legal departments make settling much easier because they are not in a situation where they MUST bill on the case, hence prolonging it, in order to get paid. In-house departments get paid whether there are claims or not and their goal is to move them through the system quickly and cost effectively.

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