Contemporary Surgery

Cases an expert witness could not defend

Clinical Professor of Surgery, The University of Pittsburgh, Pittsburgh, PA

I often have the privilege to be an expert witness in cases involving alleged malpractice by vascular and general surgeons. I believe that most cases involving unexpected bad outcomes, even death or amputation, are defensible if the adverse outcome is related to the natural history of the patient’s disease—a known unavoidable complication, particularly in a high-risk patient.

Unfortunately, some cases are indefensible because the surgeon has been truly negligent, inattentive, or simply demonstrated poor judgement. I regret having to tell defense attorneys that I cannot serve as their defense expert in this setting, but I have. Two examples come to mind.

An inclination toward re-exploration is an indication

An 18-year-old man was injured in a bus accident while traveling with his school. He had a minor head injury and open arm wound just below the elbow. At the hospital, he was placed under local anesthesia and a cardiothoracic surgeon performed exploratory surgery. The surgeon’s operative note described, “two small arteries being ligated.”

Postoperatively, the patient did poorly and had an ischemic, swollen arm with decreased motor function, and equivocal Doppler arterial signals. Three days later he was transferred to a major trauma center where surgical exploration under general anesthesia found both the radial and ulnar arteries had been ligated, the median nerve partially injured, and an overlooked fracture. Heroic attempts at limb salvage failed, so the patient required an upper-arm amputation.

COMMENT: Preoperative evaluation of the trauma patient could and should be accomplished expeditiously to avoid surprises in the operating room. A physical examination to include motor and sensory reflexes, and Doppler evaluation of the distal circulation could have been done in just a few minutes, dissuading the surgeon from exploring the patient with less than adequate anesthesia.

One should always have a plan B for any operation, particularly for trauma. Ligating both arteries in the forearm is predictive of a limb-threatening outcome. Certainly, intraoperative use of a sterile Doppler probe is easy and can guide the need for arterial reconstruction.

My reading of the operative note indicated the surgeon was unaware that he was ligating two major arteries, and no mention was made of inspecting the median nerve. While we all subconsciously are hesitant to re-explore our patients because we consider it a reflection of our failures, a good axiom is that if the surgeon is the least bit inclined toward re-exploration, it is probably necessary.

Jejunal rupture and peritonitis result in death

A 37-year-old man was a restrained passenger in a motor vehicle accident and was brought to the emergency department around midnight. The resident notified the trauma attending at home that an abdominal CT scan was negative (in retrospect, it showed a small amount of free fluid in the pelvis) and the patient was stable. In the morning, the patient complained of abdominal pain and had a slight tachycardia. He was transferred from the ICU to a surgical floor where he was started on a normal diet.

Twenty-four hours later, his pulse rate increased to 140/minute and did not change despite the IV adenosine the surgical resident ordered. The trauma attending, who had yet to see the patient, attributed the tachycardia to congenital heart disease, and requested a cardiology consultation. The cardiologist found no evidence of heart disease on examination or echocardiogram, and attributed the tachycardia to hypovolemia and peritonitis.

The trauma attending saw the patient for the first time 36 hours after admission, and then performed exploratory surgery with the findings of jejunal rupture and peritonitis. The surgeon stated that he thought this was a “delayed rupture”. The patient ultimately died of multi-system organ failure.

COMMENT: There is no excuse for an attending to not see a trauma admission for 36 hours. Juries sometimes accept delayed diagnoses by experienced surgeons in complicated cases, but they do not usually accept inattentiveness, nor should they. What sort of congenital heart disease, previously asymptomatic, causes a marked tachycardia after abdominal trauma?

Appropriate review of the original CT scan would have raised the suspicion of a significant intra-abdominal injury. Clearly, this patient had signs of peritonitis and hypovolemia 24 hours before exploration. Delayed small-bowel rupture can occur a couple of days after an unrecognized cautery injury to the small bowel, which I have seen after laparoscopic procedures. In this case, however, that was implausible.