Laparoscopy and Litigation

Laparoscopic cholecystectomy was widely adopted in 1990. Just four years later, litigation centering around bile duct injury for the laparoscopic technique surpassed similar litigation for open cholecystectomy by more than 20-fold (19). Kern suggests that this was in part due to the great deal of negative press surrounding laparoscopic injuries during cholecystectomy. In 1992, the New York Times reported, "Surgeons who rushed to use a new technique to remove gallbladders without adequate training have botched many procedures, New York State health officials and surgical experts say" (20). Certainly, the fact that bile duct injury may require reoperation, prolonged hospitaliza-tion, and potential long-term consequences such as biliary cirrhosis and portal hypertension must be considered a factor as well. Claims related to laparosocpic chole-cystectomy remained the most common in a recent report by the Physician Insurers Association of America (21). The Physician Insurers Association of America obtains information from 19 medical insurance companies under a data sharing agreement. Fifteen companies are from the United States, and four are from Canada, the United Kingdom, and Ireland. The 2000 study analyzed 535 cases. The 163 cases that were settled resulted in payments to the plaintiff totaling $34 million, and the average payment was $212,000. After laparoscopic cholecystectomy, the laparoscopic procedures that followed in decreasing order of frequency were exploratory laparoscopy, tubal ligation, and laparoscopically assisted vaginal hysterectomy. Common injuries involved the bile duct, bowel, and ureter. Failure to identify the injury, once it occurred, predicted severity of outcome. Missed detection was likely due in part to the limitation of visualization to the working field during laparoscopic procedures or "keyhole" surgery. The injury was not identified in two-thirds of cases until after the procedure was concluded, and in some cases this delay was shown to result in serious adverse outcomes. Vascular injuries were more likely to be recognized immediately compared to bowel in which detection was delayed in over 50%. Trocar injuries were a significant cause of morbidity in this report, not only initial entrance but also all subsequently placed access ports.

The urologist may be relieved at the apparent absence of laparoscopic urologic procedures among the frequent offenders. One must note, however, the relatively recent adoption of laparosocopy in urology compared to general surgery and gynecology, which embraced laparoscopy over a decade ago. Also, the Physician Insurers Association of America reports an average lag time of 21 months from injury until a suit is filed, and an average of two to five years until a suit reaches a conclusion, and is, thereafter, available for our review (22). It would seem, therefore, that the magnitude of litigation in urology would increase.

There is evidence that laparoscopic injuries are more severe than their open counterpart (23). This may explain why laparoscopic injuries are associated with higher

The importance of recognizing potential physician liability when new laparoscopic techniques are introduced in clinical practice cannot be overstated. Urologists are implementing laparoscopy over a decade following our colleagues in general surgery and gynecology. It is essential to introduce these evolving complex minimally invasive procedures into clinical practice while maintaining patient safety and keeping our professional liability to a minimum.

rewards to the plaintiff. A case presented in Ref. 24 offers some insight into the potential seriousness of laparoscopic injuries. In that case, a 22-year-old female underwent laparoscopic cholecystectomy. With the exception of some "hypotension intraoperative," a laceration to a major vascular structure was missed and required reexploration six hours postoperatively. At return to surgery, the patient received an excess of blood products, had vascular repair, but ultimately expired. A lawsuit charged the attending surgeon with negligently inserting the trocar resulting in vascular laceration and lack of informed consent. The suit was settled in favor of the plaintiff. Serious vascular injury has been shown to occur in 0.7/1000 cases of laparoscopic cholecystectomy (25). The primary trocar insertion in involved in the majority of cases.

Gawande (26) utilized records from the Physician Insurers Association of America to examine injuries during laparosocpic entry that provoked malpractice claims. The study was comprised of 135 cases reported in the United States between 1980 and 1999 and 111 cases from insurers in Europe, Australia, and Canada. There were 293 injuries in 246 patients overall. Injured structures were the small bowel (n = 89), colon (n = 56), iliac artery (n = 48), inferior vena cava or iliac vein (n = 28), mesenteric vessels (n = 11), urinary bladder (n = 9), aorta (n = 8), abdominal wall vessel (n = 7), liver (n = 6), stomach (n = 4), and other (n = 27). Injury recognition occurred sooner in the United States, and for all cases mortality increased with increasing delay in injury recognition. Delayed recognition in patients older than 59 years was significantly associated with a fatal outcome (p < 0.001). Over five years following the event, a greater percentage of cases remained open in the United States. In the United States there were 53 cases reported closed with payment (median, $127,000; maximum, $4,980,086), and outside of the United States there were 13 cases closed with payment (median, $55,000; maximum, $215,955).

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