Injuries to the large and small bowel can result in extended hospital stays, disability, and even death. The evaluation of these cases is difficult because of the wide variety of fact patterns that can be presented, the numerous issues that must be considered in the analysis, and the reality that bowel injuries and even the most serious consequences of those injuries can occur in the absence of negligence. In every case that involves a bowel injury and significant damages, a detailed understanding of the initial surgery, nature of the injury, and post-operative course is essential. Many cases cannot be ruled in or out until the complete medical chart has been reviewed by an experienced medical malpractice attorney and a highly qualified surgical expert.
Bowel injury cases can involve puncture of the bowel wall during an abdominal procedure or tissue injury that results in a delayed perforation. Both circumstances implicate the standard of care of medical providers during the post-operative period and their response to the signs and symptoms of bowel perforation. When the bowel is punctured during a procedure, the medical malpractice case may also involve questions of whether the creation of the bowel perforation is itself in violation of the standard of care and whether the surgeon had a duty to recognize and repair the injury intraoperatively.
Standard of Care
In most circumstances, the fact that a bowel injury occurs is not, on its own, the basis for a medical malpractice claim. Surgery in the abdomen often takes place in the context of inflamed or diseased tissue and the presence of scar tissue from prior surgical procedures. A surgeon can injure the patient’s bowel even when he is careful and uses appropriate technique. In order to prove a violation of the standard of care arising from an intraoperative bowel injury, the claimant must prove that the surgeon was negligent in how he performed the procedure. Examples of such negligence include injury in an area of the abdomen that did not need to be accessed for the planned procedure or use of an improper or out of date technique.
Delay in Diagnosis
In most cases involving bowel injuries, the issue is not the creation of the injury itself, but rather the failure of the surgeon to recognize the injury either at the time of surgery or in the early post-operative period. To meet the standard of care, a surgeon must be aware that certain actions during the course of an abdominal surgery create a heightened risk of bowel injury. When those circumstances are present, she must inspect the involved area to ensure that any injury is detected and repaired. For example, the insertion of a trocar, a sharply pointed device used to establish ports for laparoscopic surgery, creates the risk of injury to structures underlying the point of insertion. Laparoscopic surgeons must inspect the initial point of entry, usually at the umbilicus, to confirm that no damage was done to the structures in that area and must observe the insertion of accessory trocars using the laparoscope. If the surgeon loses sight of a trocar during insertion, the standard of care requires inspection of the area of insertion to confirm that the surrounding structures were not injured. Failure to recognize and repair such a trocar injury can be the basis for a successful malpractice claim.
Clinical Signs of Bowel Injury
Bowel injuries are often heralded by distinctive signs and symptoms during the early post-operative period, including pain, fever, tachycardia (rapid heartbeat), and tachypnea (rapid breathing). These signs, particularly when accompanied by failure to thrive, should alert treating practitioners to the possibility that the patient is suffering from a bowel perforation. On physical examination, any sign of distention, rebound tenderness, and a rigid abdomen should raise concern. These signs can make the diagnosis of abdominal catastrophe clear, but may not appear even when a patient is on the verge of systemic collapse from bowel perforation. The absence of those signs is not a sufficient defense to a malpractice claim.
When the post-operative symptoms described above cannot be adequately explained by another cause, the standard of care requires careful evaluation of the patient, increased monitoring, and appropriate diagnostic testing. Improvements in CT scanning have made that technique the most specific for detection of bowel perforation. The conventional surgical wisdom that CT scanning should not be used during the first post-operative week has been proven incorrect; correct studies demonstrate the value of this modality as early as the third post-operative day.
Whether a patient suffers limited or substantial damages from a bowel injury depends on where the injury is located and how quickly it is diagnosed and treated. Small bowel contents contain much lower levels of bacteria than the contents of the large bowel, also called the colon. The leakage of bowel contents into the abdominal cavity usually results in peritonitis, inflammation of the lining of the abdomen, along with inflammation of the tissues of the bowel and other abdominal organs. If a perforation is addressed quickly, the surgeon may be able to repair the injury without performing a bowel diversion, such as a colostomy. Delay in diagnosis often results in development of severe inflammation and fragility of the bowel tissue that prevents the surgeon from performing a single, definitive repair. If stoma creation is required, the patient must use an ostomy pouch. Depending on the extent of bowel injury and the patient’s overall health, the bowel diversion may be reversed at a later date or may be required for the remainder of the patient’s life.
The most devastating consequences of unaddressed bowel perforation are the systemic complications. Patients can develop bacteremia, viable bacteria in the circulating blood, and go on to suffer septic shock, stroke, organ failure, and death.
As with all medical malpractice claims in Maine, bowel injury cases are defended by experienced defense attorneys with access to highly qualified experts. The defense of these cases often focuses on a few critical points: 1) bowel injury is an accepted risk of nearly all abdominal surgeries, 2) the signs and symptoms of bowel injury can be subtle and overlap with more benign processes, such as post-operative ileus, and 3) studies from the medical literature reporting that bowel injuries are often not diagnosed during the early post-operative period. These defenses are appealing to jurors as part of a skilled presentation highlighting the difficulty of managing surgical patients and the importance of surgical judgment.
To successfully overcome these defenses, Claimant’s counsel must have a sophisticated understanding of the relevant medicine and surgical standard of care, as well as command of the client’s medical record. Careful construction of the case through depositions and the use of expert consultants is essential for a plaintiff to succeed in a bowel injury case at trial. The use of electronic presentation techniques to rapidly display relevant portions of a voluminous medical record and to reference favorable deposition testimony can help capture and maintain the attention of jurors during a lengthy trial.
The medical malpractice attorneys of Berman & Simmons are available to review any significant case involving bowel injury, before or after a referring attorney has gathered medical records.