Medicolegal Considerations

Kohn et al. (166) have estimated that between 44,000 and 98,000 deaths annually have been attributed to medical error in their work To Err is Human. As the endoscopic surgeon is entirely dependent upon the technology and skill, there has been increased emphasis on comparing the laparoscopic surgeon to the airline pilot. In aviation, the pilot is expected to perform with a risk of failure less than 0.0001%. If the same holds to laparo-scopic surgery, with laparoscopic cholecystectomy (the most commonly performed laparoscopic procedure in the world) as the yardstick, then bile duct injury rate of 0.5% seems unacceptable (167). Most complications can be prevented by complete control of the technology and the procedure. The fact that an increase in the performance of laparo-scopic surgery has led to rise in the numbers of malpractice litigation should not be surprising. In fact, the Association of Trial Lawyers of America set a specialized subdivision in 1994, the Laparoscopic Litigation Group, that advises lawyers on how to approach laparoscopic surgery cases. Most laparoscopic surgery cases that go to a jury verdict, favor the defendant (47). One source of in-depth information comes from the Physician Insurers Association of America involving laparoscopic injuries in the United States. The Physician Insurers Association of America is a trade association of physician- and dentist-owned professional liability insurers, with more than 60 member companies that insure greater than 60% of all U.S. private practice groups. There are also affiliated groups in Europe, Australia, and Canada (24). One recent study abstracted claims from this group from 1980 to 1999 and identified 364 U.S. claims and from 1986 to 1999 identified 137 non-U.S. claims. For each case they utilized the National Association of Insurance Commissioners severity index coding (47).

Chandler et al. (47) found that 594 structures or organs were injured in 506 patients, ranging in age from 9 to 86 years. The mean age was 41.6 years and 86% of the patients were women. Two organs or structures were injured in 64 patients, and three or more structures were damaged in 11 individuals. Laparoscopic cholecystectomies comprised 51% of the Physician Insurers Association of America claims in the United States whereas gynecologic laparoscopy comprised 47% of non-U.S. claims. The most frequently injured structure was the small bowel (n = 146, 25.4%), iliac artery (n = 106, 18.5%), colon (n = 70, 12.2%), iliac or other vein (n = 51, 8.9%), mesenteric vessel(s) (n = 42, 7.3%), aorta (n = 37, 6.4%), inferior vena cava (n = 25, 4.4%), abdominal wall vessels (n = 229, 3.8%), urinary bladder (n = 19, 3.3%), liver (n = 13, 2.3%), major visceral vessel (n = 10, 1.6%), stomach (n = 9, 1.6%), and other (n = 24, 4.2%). The severity of the injury using the National Association of Insurance Commissioners score was reflected in the fact that more than half of survivors (55%) were scored as 4, indicating major temporary impairment or disability. Sixty-five fatalities were reported. Mortality was significantly lower in the U.S. cases than in the non-U.S. cases. Logistic regression showed that an age greater than 59 years was the sole significant predictor of survival from a major laparoscopic injury. Injury to major viscera vessels and delay in diagnosis greater than 24-hours were significant variables. Looking at indemnity payments, those made in U.S. cases were significantly greater median payments than those from non-U.S. cases. The mean payment for National Association of Insurance Commissioners severity codes 2-5 was $118,000; for codes 6 and 7 it was $654,000, and for fatal outcomes the award was $351,000. The payment for plaintiffs in the United States ranged from $7500 to $4,980,086. In non-U.S. cases, the range was $1500 to $315,955. These findings particularly underscore the subtleness, lethality, and litigious attractiveness of laparoscopic bowel injuries. Electrosurgery injuries are particularly catastrophic even if they are noticed. The depth of thermal necrosis is difficult if not impossible to assess at the time of occurrence, and perforation might not occur at all. Most electrosurgical injuries occur out of the surgeon's line of sight and are missed. This presents that same subtle presentation, which requires careful attention and high degree of suspicion. These injuries are all more likely to occur during the surgeon's initial experience with advanced laparoscopic procedures (24,47).

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