Laparascopic bile duct injuries, you can hear the lawyers salivating. The rise in surgical litigation with laparascopic cholecystectomy has been very rapid and although they occurred with the open method they did not seem to carry the same stigma. Is it because they often present after the fact where in the open method they were usually noticed right away and dealt with. Is it because the media who were quick to jump on the negative band wagon with tales of botched procedures and stories of inadequate training. Is it do to the so called learning curve we all went through when our inexperience was a risk factor for bile duct injury. Probably a combination of all these things.
Nevertheless, such injuries are occurring not only with the beginner but also in the hands of accomplished laparascopic surgeons; not only in the community but also in the tertiary centres and with it a rise in litigation. We have all read about such disasters and touch wood, hope it never happens to us.
Why is there this increase in litigation around bile duct injuries and why do patients sue when surgical complications occur all the time. Medicolegal experts suggest litigation for negligence will accompany surgical complications under the following circumstances. First the injury causes major economic loss to the patient, second, the injury causes signficant organ dysfunction, disability or death, third, there may be substantial payout from the lawsuit, and fourth, the patient believes the the injury resulted from negligence.
Some surgeons and definitely all lawyers think that a bile duct injury is self-evident negligence. The term is res ipsa loquitur meaning it speaks for itself. Personally, I feel this assumption is not true. I think there is an inherent risk of bile duct injury with any cholecystectomy even in the best of hands and it is often difficult to decide when surgical misadventure actually becomes negligence and falls below the standard of care. In the surgeon’s favor there was a landmark decision in Louisiana (Charpentier v. Lammico) where the court ruled in favor of the surgeon. Although this was not a laparascopic case it’s decision was that bile duct injuries are not self-evident negligence.
I have reviewed several of these cases for the Canadian Medical Protective Association as the so called community expert and if I learned anything it is you can be the best and most conscientious surgeon out there but Shit happens, you just pray it doesn’t happen in your operating room.
The only other comment I would make is protect yourself DON’T make a video. The first two case I reviewed both had videos. They were not supportive at all but very damaging.