This is the third article of our series discussing practical and evidentiary issues in medical malpractice. Each article will examine recent medical malpractice case law and focus on the practical and evidentiary issues within them. The goal is to provide some useful insight into the obstacles that occurred in hopes that future cases can adapt and develop new ways to overcome these challenges.
Introduction
Surgical negligence cases concerning intra-operative negligence are rarely straightforward. The story often begins with a patient who has awakened from surgery to find that they suffered a serious medical complication, but is told that the surgical team did everything right. The operative report does not paint the whole picture. The patient is left confused and frustrated. What happened in the operating room?
The recent Ontario case, Szeto v. Kives1 is an important illustration of how surgical photo evidence can be skillfully utilized to overcome the evidentiary gaps of an operative report written by the defendant and undermine opposing expert opinion.
Challenges Of Intra-Operative Surgical Negligence Cases
Surgical negligence cases are one of the most challenging types of medical malpractice cases for plaintiffs to pursue. The surgical error can be strikingly clear in some cases. News outlets occasionally cover stories about a surgery being performed on the wrong site or patient, the wrong surgical procedure being performed, or surgical items being left behind inside the patient. However, most surgical negligence cases are far from straightforward. Counsel will find that in many cases, the patient or their family have absolutely no understanding of what may have gone wrong for the serious injury or death to have occurred, partly due to limited sources of evidence.
If the patient was under general anesthesia, they would obviously have no clue as to what actually transpired in the operating room behind closed doors. There are no family members or friends present to provide their account of the events during surgery. The only witnesses are the members of the plaintiff’s surgical team, who are also the potential defendants. The primary evidence regarding how the surgery was performed will be contained in the operative report written by the defendant surgeon. The operative report will form a part of the patient’s medical record, along with other operative records completed by potential defendants. When the medical records paint a seemingly uncomplicated surgery (i.e. no red flags), the investigation will be extremely challenging.
Facts Of The Case
In the recent Ontario case Szeto v. Kives, the plaintiff underwent a robotic-assisted laparoscopic hysterectomy at St. Michael’s Hospital, performed by the defendant gynecologist surgeon. The defendant documented in the operative report that she took down or cut a significant quantity of adhesions by the left fallopian tube to the bowel. The defendant also documented that the top of the plaintiff’s uterus was inadvertently perforated during the insertion of an instrument called the uterine manipulator. No other complications were documented.
Following the surgery, the defendant went to see the plaintiff in recovery. The defendant was satisfied that the surgery had gone well and informed the plaintiff’s sister that it was a “textbook” surgery. There was no mention of any complications. The plaintiff was discharged from the hospital the next morning, although still feeling unwell. In the middle of the night, she developed chest pain and was taken by ambulance to Scarborough General Hospital in critical condition. She underwent lifesaving emergency surgery by Dr. Chiu during which it was discovered that she had a bowel perforation which required a colostomy. The plaintiff suffered permanent injuries and was discharged after months of difficult recovery.
In trial, the experts agreed that the bowel perforation occurred during the surgery conducted by the defendant. Justice Leiper found that the bowel perforation likely occurred while the defendant was cutting the significant quantity of adhesions between the left fallopian tube and the bowel. She acknowledged that another mechanism of injury was possible. However, it ultimately did not matter how the injury occurred because the injury happened during the surgery for which the defendant was responsible. The defence did not dispute that had the defendant discovered the injury intra-operatively and taken steps to repair it, the plaintiff’s permanent injuries would likely have been avoided. The parties agreed on damages outside of court.