One of the most common defenses used in surgical medical malpractice cases is that a complication is a known risk of the procedure. Known risks are things that can happen even when care is appropriate and no negligence was involved. They’re usually detailed in the informed consent paperwork that patients are asked to sign before care begins.
For example, when a patient has a hysterectomy, it’s a known risk that the ureter can be damaged, resulting in a leak of urine into the patient’s peritoneal cavity. In other words, when the ureter is accidentally nicked or cut during the surgery, that in and of itself isn’t likely medical negligence.
That doesn’t mean, though, that there can’t be a claim related to the overall care. This is precisely the issue was considered by the Eastland Court of Appeals, in a case styled Morrison v. Nancy Morrison v. Asamoa et al.; No. 11-20-00125-CV, In the 11th Court of Appeals of Texas. You can read the opinion here.
In that case, the patient had a total laparoscopic (minimally invasive) hysterectomy at a hospital in Odessa, Texas. During the surgery, her ureter was injured, resulting in a urine leak into her peritoneal cavity. The leak of urine caused infections and other complications including nausea, vomiting, diarrhea, abdominal pain, pain, fever, sepsis, and acute renal failure, which required her to be hospitalized in a Midland, Texas hospital.
Her post-operative hospitalization lasted 54 days. She was poked and prodded by several physicians, including her original surgeon. Some of the physicians were hospitalists, physicians trained in internal medicine who maintain a hospital-based practice. She was also treated by a nephrologist, which is a kidney specialist; an infectious diseases physician; and a pulmonologist, which is a physician who specializes in the respiratory system.
Throughout her hospitalization, this patient suffered from ascites and pleural effusion, both of which are abnormal accumulations of fluid. Her medical team treated these by procedures called paracentesis and thoracentesis, which basically involved inserting a needle and removing fluid. On the first day of her admission, she had an ultrasound that showed hydronephrosis, which is a condition where the kidney is stressed or distended because of an accumulation of urine because of obstruction to outflow.
According to the medical malpractice lawsuit, the physicians treated the symptoms, but never bothered to go through the differential diagnosis process to determine what was actually the cause of her fluid buildup in medical problems. The plaintiffs alleged that the physicians never considered that the patient had recently had a hysterectomy, which has a known risk of damage to the ureter. Damage to the ureter could explain the patient’s sudden symptoms post-operatively.
The factual background of this case is a perfect example of how a hospital-acquired injury, here intraoperative damage to the ureter, isn’t negligence, but ignoring the fallout caused by complication can constitute negligence.
The principal issue before the Court of Appeals, though, dealt with whether the plaintiffs to satisfy the tort reform expert report requirement. This requires plaintiffs to serve a medical expert report on each defendant within 120 days of the defendant filing an answer in the lawsuit. The expert report must be written by a qualified physician, detailing the applicable standards of care, how it was violated, and how the substandard care caused harm to the patient.
In this case, the defendants objected to the sufficiency of the plaintiffs’ timely expert report that was written by a gynecologist.
The patient’s original hysterectomy surgery was performed by a gynecologist, so the selection of this expert seems appropriate. The main issue raised by the defendants was that a gynecologist isn’t qualified to provide expert opinions concerning the hospitalists, nephrologist, infectious disease physician, and pulmonologist who were also involved in the patient’s care.
The appellate court considered the experience of the plaintiffs’ gynecological expert witness. His expert reports discussed extensive experience in the postoperative management of patients who had a laparoscopic hysterectomy. The expert discussed how this care includes following the patient after surgery to diagnose and treat any complications that may arise from the surgical procedure, including ureteral injury.
This level of detail is important because courts are required to examine the expert’s experience in the precise issues in the case. This gynecologist performed laparoscopic hysterectomies, just like the surgery at issue in this case, and was familiar with the complication of injury to the ureter, which was also the issue in this case.
The expert addressed the issue of differential diagnosis, commenting, “Taking a medical history and considering factors such as recent surgeries in diagnosing the cause of the patient’s symptoms is common to virtually all physicians. Any physician should be capable of conducting a differential diagnosis and considering whether a recent surgery could be a contributing cause of the patient’s current symptoms.â€
The expert explained that the same standard of care applied to the physician seeing a patient in the emergency room, in a hospital, in a clinic, or even in a private office exam room.
The Eastland Court of Appeals rejected the objections to the plaintiffs’ expert report raised by the physicians from other specialties. The reason for this is that the plaintiffs’ expert thoroughly explained his qualifications and experience with the precise issue in the patient’s care.
Interestingly, the court cited and discussed a Houston Court of Appeals opinion as supportive of its opinion. In the famous Blan v. Ali, case, the court held that if the subject matter of the expert’s report is common to a legally recognized and developed in all fields of practice, any physician familiar with the subject may testify as to the standard of care. 7. S.W.3d 741 (Tex. App.—Houston [14th Dist.] 1999, no pet.). That case distinguished between matters peculiar to specific medical fields, versus matters that are within the experience of different types of physicians.
On this basis, 11th Court of Appeals reversed and remanded the trial court’s order dismissing the case on the expert qualification ground. This is a significant victory for the plaintiffs and, I believe, for patient rights in Texas.
If you’ve been seriously injured because of poor medical or hospital care in Texas, then contact a top-rated, experienced Texas medical malpractice lawyer for a free consultation about your potential case.
