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Medical Malpractice - Failing To See What Was There To Be Seen

Victor Lewin - Friday, May 10, 2013

Unfortunately, it is too often the case that Nova Scotia, New Brunswick and PEI patients are discharged from hospital prematurely, in the face of evidence that they have an ongoing medical complication. An appeal from a medical malpractice trial decision released recently highlights what can happen when doctors and surgeons negligently fail to observe important information concerning a patient's condition.

In that medical malpractice case, a 50 year old social worker was suffering from stress incontinence. She was referred to a surgeon for treatment. The doctor advised her that there was no medication available for her problem and that the only effective treatment involved surgery.

The doctor prescribed a minimally invasive sling procedure used to treat the stress incontinence. The procedure involves the insertion of poly propylene mesh or tape under the urethra near the vagina.

The hospital where the doctor worked used a slightly different surgical kit for sling procedure than what the doctor was previously used to. Because the doctor had no experience with this type of surgical kit, she did some research on the procedure and asked another doctor to observe her performing several procedures prior to performing the surgery on the plaintiff. The surgery was performed. The doctor wrote that there were no surgical complications.

However, the next day the plaintiff was suffering excruciating pain in her pelvic area. Nevertheless, the doctor ordered her to be discharged home. Approximately one week later, the plaintiff saw the doctor for a scheduled follow up appointment. She was still experiencing severe pelvic pain. The doctor was unconcerned. No tests or follow up appointments were ordered.

The plaintiff's pain continued. Several months later, she was referred to a different doctor who ordered a cystoscopy which showed that a portion of the tape from the sling procedure had perforated her bladder. The tape was removed via laparoscopic laser surgery.

Unforunately, the pain and disability continued. The plaintiff would have to have several more surgeries over the following years to remove pieces of tape from her body. She continues to suffer the consequences of what was a relatively routine surgery. She commenced a lawsuit against the doctor for medical malpractice.

Interestingly, after finding out about the lawsuit against her, the doctor made two alterations to the plaintiff's medical chart. She added notes identifying the risks of surgery as "bladder, bowel injury". She also added to the chart that she "advised if pain persists will require cystoscopy and probable removal of the tape [right arrow] moving to Saskatoon, said will contact a doctor there if necessary". These conversations, in fact, never took place.

Following a trial, the judge found the doctor had acted negligently in ignoring the presence of blood in the plaintiff's urine post-surgery or failing to grasp its significance. He wrote:

... [the doctor] either failed to observe blood in the patient's discharge at the conclusion of the operation and during the patient's stay in the hospital, or ignored the presence of blood or failed to grasp its significance. I accept that the nurses would have told her about it. In failing to observe the blood, or in ignoring the blood or in failing to grasp the significance of the blood, the defendant did not meet the standard of care to which the plaintiff was entitled. Her failure to evaluate the presence of blood in the patient's urine was a failure to meet the standard of care which she owed the plaintiff.

In determining the consequences of the failure to observe the blood in the discharge during surgery and also to provide appropriate post-operative care, the judge stated:

While the negligence I have found was not the cause of the perforation of the bladder and the urethra, the defendant was negligent during the surgery and post-operatively in failing to observe blood in the plaintiff's discharge or ignoring the blood in the discharge and its significance and thus lost the opportunity to rectify the problem at that time. In my view, [the doctor's] failure to observe the indicia of bladder perforation, or her disregard of the blood in the discharge and its significance caused the ongoing pain and suffering of the plaintiff.

. . .

If [the doctor] had observed the blood in the discharge of the plaintiff or heeded the concerns of the nurses, other procedures such as a cystoscopy could have been performed to locate the transection, much as it was done on August 4, 2005, when Dr. Arwini discovered the tape. If the tape had been discovered on April 8 or 9...Ms. Baum's problems could have been resolved at that time...removal could be done up to approximately one week after the initial surgery without undue difficulty.

... if her problems had been discovered while she was still in the hospital, the complications could have been resolved immediately by surgery. This failure to observe the patient's condition meant that the patient's surgery was not corrected, leaving her in pain and discomfort for years.

The doctor appealed these findings. The Court of Appeal upheld the finding ofnegligence and causation against the doctor. Total compensation of $270,000 was provided to the injured plaintiff.

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