The effort to reduce colon cancer deaths is endowed with a unique opportunity. With screening by colonoscopy, lesions can be removed before they become cancerous. People age 50 and older are recommended to undergo colonoscopy, and the procedure is typically repeated thereafter at varying intervals. Consequently, millions of colonoscopy procedures are performed in the United States each year.
Although the risks associated with colonoscopy are modest in percentage terms, a colon perforation involving the need for surgical repair, and often a colostomy, will have a significant impact on the patient. Personal injury attorneys have noticed that juries tend to sympathize with patients suffering such complications and reward them generously when they find fault with the procedure in the retrospective analysis our court system provides.
In the past, informed consent was the focus of judges’ and juries’ attention when a colonoscopy perforation case reached the courts. The patient would not recall that the risk of perforation was part of the consent discussion, and the jury would be asked to determine whether the practitioner made the disclosure the standard of care required before allowing the patient to sign the consent. Although the burden of proof was upon the patient and her attorney, sympathy for the patient often bridged gaps in the proof.
Physicians who performed colonoscopies responded by making their consent processes and forms state explicitly that the risks were discussed in the presence of the patient and his or her escort, listing the risks on the consent forms, and even having the patient list in his own handwriting the risks of infection, bleeding, and perforation requiring immediate surgery. These steps made it more difficult for an attorney to establish that the risks had not been disclosed and the consent was not informed.
Because a patient who required even a temporary colostomy was still an attractive plaintiff, the theories advanced by attorneys and expert witnesses for patients have adapted. In some cases, the consent process may not have been recalled by the patient or understood by her attorney until the case was being prepared for trial and both were committed to their course. Colonoscopy litigation has evolved, and the effort to contain it must evolve as well. With a good bowel preparation, it is often possible to repair a small colonoscopy perforation by means of a primary repair with minimally invasive or even endoscopic surgery and no diverting colostomy. Thus the perforation itself is not the injury sued for; instead, the lawsuit involves the manner in which the perforation is addressed.
The current trend is for the plaintiff’s attorney to question whether the diagnosis should have been made before the patient left the colonoscopy facility, the adequacy of the discharge instructions, the communications between clinician and patient following discharge, and the response time once the patient’s symptoms suggested more than routine post-procedural symptoms.
Complete documentation not only assists in defending lawsuits, it can and does deter patients and their attorneys from filing suit in the first place. If the records of treatment are unequivocal to the effect that there were no complaints or physical findings at the time the patient left the facility, it becomes easier to prove that the patient became symptomatic thereafter. If the patient has signed for the discharge instructions, and a copy of these instructions are in the chart when requested by his attorney, there is less doubt about the adequacy of the instructions. If every contact with a post-colonoscopy patient is documented for the chart, there is less room for disagreement as to who said what to whom. If every post-colonoscopy patient with complaints that could represent early perforation is offered an examination in the emergency room, only the patient’s decision not to go to the hospital will have delayed the diagnosis.
The successful defense of lawsuits is one goal, but the prevention of lawsuits is also attainable.
John L.A. Lyddane is a Senior Trial Partner at Martin Clearwater & Bell LLP. With over 30 years of legal experience, he focuses his practice on the defense of technical personal injury and professional liability actions in state and federal trial courts.