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Tips from the Trenches: Claims Update

Specialty: Family Practice with Surgery
Procedure: This 65-year old male patient with a history of left inguinal hernia repair from 3 years prior underwent a colonoscopy by our insured who was the patient’s primary care physician. During the procedure quite a bit of undulation was encountered when passing into the descending colon requiring several passes to get the scope into the transverse colon. Diverticula was encountered in the transverse and ascending colon. The patient tolerated the procedure well and was discharged.

Five days later, the patient presented to his local ER with complaints of abdominal cramps and diarrhea and gave a history of having a colonoscopy five days prior.  Diagnoses were gastroenteritis, dehydration and hyponatremia. The patient was told to follow up with his primary care physician in one to two days and discharged with prescriptions for Levaquin, Zofran and Lortab.
Three days later, the patient returned to the same ER with complaints of chills and increased pain across lower abdomen since last ER encounter. A CT confirmed a perforated sigmoid colon. The patient was transferred to a tertiary hospital in a larger city. Once there and on the same date, physicians performed an exploratory laparotomy through midline incision with segmental resection of the perforated sigmoid colon and pericolonic plegmon with side colon to end rectal circular stapled anastomosis. The patient later developed a wound infection and had an open incisional hernia repair with mesh performed five months later.
Allegations:  Allegations against our insured included failing to take an adequate history, perform an adequate exam as well as failing to take into account the prior hernia repair surgery and inform the patient of the complications posed by that prior surgery. Additionally, the patient claimed the colonoscope began to loop which our insured failed to recognize or failed to take reasonable steps to prevent recurrent looping and continued to advance the scope resulting in the injury.
Resolution:  Our insured was strong in wanting to defend this case all the way through trial as what occurred is a known complication. Additionally, the patient never returned to him to give him the opportunity to diagnose the complication. Our insured felt the complication may have been diagnosed sooner, had the patient returned to him. No settlement offers were made and the case was tried to a jury who found in favor of our insured. 
Cost of defense:  $242,806.21
Risk Management Tips:
  • A known complication is not negligence.
  • Consider pre-existing surgeries which may complicate your procedure and have that informed discussion with the patient.
  • Make sure the patient understands what to expect after discharge and to contact you with any issues.
  • Be prepared to assist your attorney in every step of the litigation process, if necessary, to defend yourself.
Litigation Tip:
Be instrumental in your defense by helping your attorney prepare visual aids to educate the jury about the procedure and what likely occurred. Juries favorably respond to visual aids.

Susan Daignault
KAMMCO Medical Liability Analyst and Claims Manager