Practicing Preventive Medicine: Defending against Allegations of Negligence during Gynecological Surgery before the Lawsuit Begins

By Anthony M. Sola and Daniel L. Freidlin
Friday, June 5, 2015
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Laparoscopic surgery has been widely utilized, with technical advancement and procedures consistently developing. Robotic laparoscopic hysterectomy is but one example of innovation in gynecologic surgery. 

Despite refinements in surgical technique, patients undergoing pelvic operations still develop complications, including injury to surrounding organs such as the bowel, bladder and ureters, sometimes resulting in incontinence. Complications stemming from gynecologic surgery have the potential for litigation because any degree of incontinence may draw sympathy from jurors, making the patient an attractive potential plaintiff.

In addition to a plaintiff’s attorney arguing that the physician negligently caused the injury, it will invariably be claimed that the patient was not fully informed of the known surgical risks. As the defense to the underlying injury is often that it was a known complication of the procedure, the plaintiff’s attorney may focus on the informed consent claim. At trial, a lack of informed consent claim requires that the plaintiff demonstrate that the provider failed to advise the patient about the procedure and its benefits, the alternatives to treatment, and the reasonably foreseeable risks. Although there are legal defenses to an informed consent claim, the sufficiency of the information provided may ultimately be decided by lay jurors with the assistance of medical expert testimony.

Documentary proof of the sufficiency of a physician’s practice for obtaining the patient’s consent can be of major assistance in persuading a jury in favor of the defense. One of several effective practices includes scheduling two presurgical office visits during which the proposed operation is discussed. The first visit will include a discussion of the risks, benefits and alternatives to treatment. The second will include signing the consent form. The time between the two visits allows the patient to digest the information before agreeing to treatment.

Equally important to informed consent is the documentation that can be used years later to prove it was obtained. As the plaintiff will almost always claim she was not warned of any serious risks prior to surgery, whereas the surgeon will testify otherwise, it often becomes a “he said–she said” dispute ultimately left to the jury to decide who is telling the truth. And sympathy frequently tilts the battle in the plaintiff’s favor. Consequently, documentation is critical in deciding this issue. Importantly, a signed, generic, hospital consent form is often insufficient to convince a jury that the patient was adequately informed of specific risks. Detailed documentation in the office chart specifying what the patient was told is persuasive but often attacked by the plaintiff’s attorney’s argument that information was added to the record after the complication occurred. We have found that an effective method of persuading jurors to side with the physician is supplementing the informed consent discussion with a written consent brochure signed by the patient detailing the purpose of the surgery and alternatives to treatment, and specifying the important complications. As the plaintiff will be hard pressed to argue she was not informed of surgical risks when her signature appears on a detailed pamphlet, many of our clients have retained us to prepare consent forms for specific surgical procedures.

As the risk of injury to the bowel, bladder or ureters during pelvic surgery has been cited to be up to 2 percent, even the most experienced surgeon is likely to encounter such a complication at some point. Defending against a potential medical negligence lawsuit begins before the patient is ever brought to the operating room. Having complete documentation not only assists in defending lawsuits, but it can and often does deter patients and their attorneys from filing suit in the first place.


Anthony Sola With Daniel FreidlinAnthony M. Sola is a Senior Partner at Martin Clearwater & Bell LLP. Daniel L. Freidlin is a Partner at Martin Clearwater & Bell LLP. For more information, visit mcblaw.com.