By Daniel L. Freidlin, Esq.
When litigation arises, a well-documented informed consent and operative report support an effective defense.
Hysterectomy is a frequently performed gynecologic operation. The ureter is at risk of injury during hysterectomy because of its proximity to the pelvic organs, as well as its anatomic path relative to the external iliac arteries, the pelvic brim, the uterine arteries and the cardinal ligament. Retrospective studies have found that the risk of injury to the ureters approaches 1%. Because a typical gynecologist performs numerous hysterectomies over the course of a career, most have encountered this complication. The majority of urethral injuries go unrecognized intraoperatively, leading to the need for additional repair surgery with possible resultant urinary complaints. It thus comes as no surprise that many hysterectomies complicated by urethral injury result in lawsuits.
With the understanding that any hysterectomy can be a lawsuit waiting to happen, a wise surgeon lays the groundwork for a successful defense well before the patient hires a lawyer. As is often the case, building the defense frequently begins with appropriate documentation. This includes a well-documented informed consent and a properly worded operative report.
A typical surgical complication case will include at least two claims. The plaintiff’s attorney will allege that the surgeon failed to take appropriate intraoperative steps to mitigate the risk of surgery and that the surgeon did not warn the patient about the potential complication in advance of surgery. At trial, a lack of informed consent claim requires that the plaintiff prove that the medical provider failed to explain the benefits of surgery, the alternatives to treatment and the reasonably foreseeable risks. Lay jurors weigh the qualitative sufficiency of the information provided with the assistance of medical expert testimony. This requires more than a standard hospital consent form. Ideally, the surgeon will document in the office record the specific risks, benefits and alternatives to treatment discussed with the patient. Additionally, the surgeon will have the patient sign the consent form prior to the morning of surgery.
An extra step that proves persuasive with jurors is to provide the patient a detailed brochure with information about the surgery and its complications. Having the patient sign that they received the brochure is a persuasive tool that the plaintiff will have difficulty overcoming.
With regard to the surgery itself, the plaintiff’s lawyer will often argue that the surgeon did not take proper steps to visualize the ureters prior to dissection or use of cautery. The following steps are often performed during hysterectomy but are rarely documented:
- Identifying the ureter at the pelvic brim
- Incising the round ligament and anterior leaf of the broad ligament
- Creating of a bladder flap to increase the distance between the ureter and uterine artery
- Skeletonizing the uterine arteries
Documenting the precise steps employed during pelvic surgery to improve visualization of the ureters assists the defense attorney in explaining to the jury that the defendant surgeon employed specific maneuvers to improve patient safety and mitigate the risk of injury. This, however, is not enough. The surgeon may diffuse the plaintiff attorney’s avenue for attack by simply including a statement in the operative report that he or she identified the ureters during the surgical dissection. It is difficult for the plaintiff’s lawyer to advance a persuasive argument that the surgeon failed to identify the ureters when the operative report contains specific documentation to the contrary.
Statistics say that most surgeons, irrespective of skill level, will encounter this situation at some point in a career. A well-documented informed consent and operative report not only assists in defending the lawsuits when they occur, but they may deter the plaintiff’s attorney from initiating the lawsuit in the first place.
Partner Daniel L. Freidlin is an attorney at Martin Clearwater & Bell LLP where he focuses his practice on the defense of medical malpractice matters. For more information, visit mcblaw.com.
Source: MD News October 2022, Long Island Edition