A laparoscopic cholecystectomy is a minimally invasive surgical procedure in which the gallbladder is removed with the assistance of a video camera and several thin instruments. Although “minimally invasive” sounds good, the downside is the reduced ability of surgeons to see all of the anatomical structures to ensure they cut the right ones and do not cut the wrong ones. During the procedure, it is not uncommon for the surgeon to cut the patient’s common bile duct, a small, tube-like structure formed where the common hepatic duct and the cystic duct join, which carries bile from the gallbladder to the upper part of the small intestine. A severed common bile duct can be repaired. Repairing a severed common bile duct usually requires the conversion of the procedure from laparoscopic to an open surgery, specifically a laparotomy, during which a large incision through the abdominal wall is made to gain access to the abdominal cavity. A Roux-en-Y hepaticojejunostomy procedure surgically sutures the common bile duct to the upper part of the small intestine. Medical malpractice lawsuits often ensue.
Establishing the standard of care and the surgeon’s deviation from the standard is challenging in medical malpractice actions regarding laparoscopic cholecystectomies when incorrect anatomical structures are severed. Courts have considered theories of negligence running the spectrum from the theory that a surgeon cutting the wrong anatomical structure is negligent per se, to requiring expert testimony to establish the standard of care and that cutting the wrong structure constitutes a breach, and, finally, that cutting the wrong structures is a known risk of laparoscopic cholecystectomies.
Like most medical malpractice claims, claims related to cutting the wrong anatomical structure during laparoscopic cholecystectomies usually require expert testimony to establish the standard of care and that cutting the wrong structure constitutes a breach. For example, in Wheeler v. Luberger, 2016 WL 146008 (Tex.App.-Hous. (14 Dist.), January 12, 2016) (not designated for publication), the defendant surgeon cut the common bile duct during the laparoscopic cholecystectomy. With the complaint, the plaintiff filed a medical expert report. The plaintiff’s medical expert stated that the standard of care required the doctor to carefully identify the biliary tract anatomy, specifically the cystic duct, and only cut the cystic duct to remove the gallbladder. The expert opined that the doctor fell below the standard of care in cutting the common bile duct. The report went on to state that if the doctor had avoided cutting the common bile duct, in reasonable medical probability, the procedure would not have had to be converted to a laparotomy and the Roux–en–Y hepaticojejunostomy would not have been needed. The trial court found the report, while potentially not adequate to overcome a motion for summary judgment, adequate to inform the defendant surgeon of the specific conduct the plaintiff called
into question and provide a basis for the trial court to conclude that the plaintiff’s claims had merit. In affirming the trial court’s denial of the surgeon’s motion to dismiss, the Texas Court of Appeals specifically noted that the plaintiff’s expert report explained that the standard of care required the doctor to carefully identify the pertinent anatomical structures and cut the common cystic duct instead of the common bile duct and, if he had cut the proper duct, the laparotomy would not have been needed. The expert’s assertion that the doctor’s transection of the common bile duct led to complications resulting from the open surgery was sufficient to establish causation.
Courts have also considered whether a negligence per se standard applies to cutting the wrong anatomical structure during laparoscopic cholecystectomies. For example, in Johnson v. Kolachalam, 2016 WL 3946164 (Mich.App., July 21, 2016) (not designated for publication), the defendant general surgeon began the procedure as a laparoscopic cholecystectomy. He encountered severe inflammation inside the patient’s gall bladder. Despite the severe inflammation, he did not convert from a laparoscopic to an open procedure so he could see all of the anatomical structures to ensure he cut the right ones and did not cut the wrong ones. He cut the common bile duct during the laparoscopic cholecystectomy.
The defendant general surgeon sought assistance from a second surgeon and together they attempted to repair the common bile duct using a Roux–en–Y hepaticojejunostomy. The Roux– en–Y was unsuccessful. The patient required additional surgery to repair the severed common bile duct.
The plaintiff’s expert general surgeon testified that he had never reviewed a laparoscopic cholecystectomy in which a bile duct injury occurred that was not the result of malpractice. He also testified that the general surgeon breached the standard of care in several respects in addition to cutting the common bile duct. Specifically, he testified that when the inflammation appeared as severe as it did, the laparoscopic operation should have been converted to an open operation and when the injury was recognized, the woman should have been transferred to a hepatobiliary surgeon rather than attempting a Roux-en-Y procedure. The expert general surgeon stated that a Roux-en-Y procedure should only be attempted by a surgeon who had training and experience in performing that procedure.
The general surgeon, his practice group, and the hospital filed a motion in limine to strike the testimony of the woman’s expert general surgeon. They argued that the testimony improperly imposed a negligence per se standard that any bile duct injury during a laparoscopic cholecystectomy amounted to malpractice.
The Court of Appeals of Michigan affirmed the trial court’s decision to allow the woman’s expert general surgeon to testify. The court held that the defendants misconstrued the plaintiff’s expert general surgeon’s testimony regarding the standard of care. Specifically, the woman’s expert general surgeon did not testify that it was impossible for a bile duct injury to occur absent malpractice, or that such an injury amounted to negligence per se. Rather, his testimony was that he had never reviewed a laparoscopic cholecystectomy in which a bile duct injury occurred that was not the result of malpractice. The court noted that both of her experts agreed that when the general surgeon encountered the severe inflammation inside the patient’s gall bladder, he should
have converted from a laparoscopic procedure to an open procedure so he could see what he was doing and avoid cutting the common bile duct. The woman’s expert general surgeon was qualified to testify regarding the propriety of the general surgeon performing the Roux–en–Y procedure because he was board-certified in the same specialty as the general surgeon and his testimony that a Roux-en-Y procedure should only be attempted by a surgeon who had training and experience in performing that procedure was well within his area of expertise and supported by the medical literature.
On the other end of the negligence spectrum, some court have considered the argument that cutting the wrong structure is a known risk of laparoscopic cholecystectomies. For example, in Mushrush v. Feinberg, 2016 WL 6906741 (Ill.App. 4 Dist., November 22, 2016) (not designated for publication), during the laparoscopic cholecystectomy, the surgeon nicked the patient’s bowel. At trial, the patient’s expert testified that incidental enterotomies, surgically cutting open of the intestine, are a recognized complication of cholecystectomy and can occur in the absence of negligence. The patient’s expert testified that the surgeon’s only violation of the standard of care during the surgery was failing to specifically document that he reinspected the man’s bowel in his post-operative report. The trial court entered a directed verdict in favor of the surgeon and his practice group on the medical negligence claims because the trial court found the patient failed to introduce evidence that any of the surgeon’s allegedly negligent acts proximately caused the patient’s injuries. The Fourth District Appellate Court of Illinois affirmed, holding that the trial court did not err in entering a directed verdict for the surgeon based on a lack of expert testimony establishing that the alleged medical negligence proximately caused the man’s injuries.
By Sarah Kelman, JD, and the experts and editors at Medical Law Perspectives.
For more details about Mushrush v. Feinberg, 2016 WL 6906741 (Ill.App. 4 Dist., November 22, 2016) (not designated for publication), see the Scalpel Weekly News, December 4, 2016, “Nicking Bowel During Gallbladder Surgery, Not Medical Negligence.”
For more details about Johnson v. Kolachalam, 2016 WL 3946164 (Mich.App., July 21, 2016) (not designated for publication), see the Scalpel Weekly News, August 1, 2016, “Dismissal with Prejudice Too Harsh Discovery Sanction; Gallbladder Removal Surgery.”
For more details about Wheeler v. Luberger, 2016 WL 146008 (Tex.App.-Hous. (14 Dist.), January 12, 2016) (not designated for publication), see the Scalpel Weekly News, January 25, 2016, “Bile Duct Severed During Laparoscopic Gallbladder Removal; Expert Report.”
See also Medical Law Perspectives, August 2013 Report: Surgical Misidentification: Wrong Site, Wrong Procedure, Wrong Patient
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