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Tips from the Trenches: Claims Update

Subject: Informed Consent with Stipulated Damages

Litigation Risk: A stipulation is a formal agreement made between the parties prior to trial. For example, if the parties stipulate to certain facts, those facts do not have to be presented to the jury during trial. For this claim, stipulating to the damages prior to trial meant the evidence and testimony regarding the patient’s complicated and prolonged recovery would not be heard by the jury. The trial Judge agreed with the defense’s position that this stipulation would keep the jury from hearing unnecessary evidence and they would decide the case solely on the facts pertaining to the liability issue of informed consent. 

Procedure: For several years our insured followed this 42 yo female patient (5’ 7”, 240 lbs.) with a history of hypertension, anemia, hiatal hernia, kidney stones, gallbladder disease, liver hemangioma and left kidney cyst, for urethral stones with a renal cyst. CT urography showed the renal cyst measured 7 x 5.1 cm (up from 6.5 x 4.9 cm previously) and was somewhat obstructing the lower pole collecting system. Our insured thought lithotripsy would cause problems with the cyst so he discussed laparoscopic removal of the cyst with the patient and documented he spent over 40 minutes discussing the risks and benefits of the procedure. The patient elected to proceed with surgery and underwent a laparoscopic left renal cystectomy with the assistance of another surgeon. The surgery appeared to be without complication and the patient was admitted to the floor for recovery. 

Following surgery the patient began to run a fever and experience abdominal pain. A CT showed an increase in the amount of free air beneath the diaphragm and bilateral pleural thickening. The patient began experiencing worsening abdominal pain and cessation of bowel movements. An infectious disease physician was consulted and his impression was acute renal insufficiency, hypoxia, UTI, and possible intra-abdominal infection. A general surgeon performed a diagnostic laparoscopy, converted to an exploratory laparotomy, which revealed a perforation in the colon with leakage of bowel contents. The patient underwent a colostomy and loop ileostomy and, due to the large amount of infection and edema, an abdominal wound vacuum was placed with the abdomen left open, and antibiotics were begun.

Eight subsequent procedures were required to reopen the abdomen, replace the wound vac, irrigate the abdominal cavity and/or place/tighten a Whitman patch. The patient required tube feedings with TPN and received physical and occupational therapy. The patient was discharged home 42 days following our insured’s procedure with a wound vac, ileostomy and colostomy in place. She received home health care for cleansing and packing of the abdominal wound and wound vac maintenance. Four months later she was admitted to the hospital for a reversal of the loop ileostomy and colostomy along with an exploratory laparotomy and lysis of adhesions. The patient recovered other than an incisional hernia which was repaired 2 weeks later. During that admission a urologist was consulted for renal failure. The urologist felt it was possible the patient’s left kidney suffered some type of vascular insult during our insured’s procedure. The patient’s problems with kidney stones continued and she eventually underwent a cystoscopy, ureter stint placement and shockwave therapy to break up the kidney stones.

Allegations:  By the time the case went to trial and with the stipulation of damages, the plaintiff’s only remaining allegations involved informed consent. The plaintiff claimed our insured failed to advise the patient: (1) the surgery was not medically necessary; and (2) the risks and possible complications of the procedure.

Resolution:  This case was tried to a jury and resulted in a defense verdict after 2 hours of deliberations. Prior to trial, counsel for our insured decided to stipulate to plaintiff’s damages (totaling $880,857.90) to keep out evidence of the patient’s complicated and prolonged recovery. Following the verdict, plaintiff filed an appeal claiming: (1) the court’s instructions “misled the jury” into believing more proof was necessary to obtain recovery than the law actually required; and (2) the verdict form misstated the law of informed consent by asking if a reasonable person would have consented to the procedure if adequately informed rather than asking if a reasonable person would have declined the procedure if adequately informed. The Court of Appeals affirmed the defense verdict.

Cost of Defense:  $73,883.38

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