It started with a simple question...
He was calling me because he saw a video I created about bowel injuries following colonoscopy. He said "Mr. Oginski, I just watched your video on YouTube about people getting injured during a colonoscopy. The same exact thing happened to me. Do you think I have a case?"
A little background here...
I have handled many cases in my career involving patients who suffered injury as a result of improper medical care here in New York. I decided to create a series of educational videos to help teach people about those types of cases and how they work. In one video I describe a client whose mom died because an anesthesiologist failed to recognize that she aspirated stomach contents up from her stomach into her mouth and then inhaled that acidic material into her lungs.
This caller told me a story. It involved him, his gastroenterologist and his primary care doctor. He was the lead character. So was his GI doctor. The primary care doctor was a supporting actor.
You see, he was having some rectal bleeding. He noticed this every time he went to the bathroom. He knew this wasn't normal and decided to see a gastroenterologist. The GI physician recommended a colonoscopy to see internally what was going on. He wasn't worried, but needed to take a look-see inside to figure out if there's something more serious happening that needs to be investigated.
He hadn't had a colonoscopy in many years. He knew he needed one but was trying to avoid it because he feared the procedure and didn't like being sedated. Now that there was blood when he wiped, he was concerned.
So, he agreed. He signed all the papers given to him by the office staff. He scheduled an appointment for pre-surgical testing. He saw his primary care doctor to get approval for the colonoscopy. He got it. As he walked out of his primary care doctor's office, he felt like a kid again, having gotten a gold star for answering all the questions correctly. In reality, it was just a screening visit to make sure he was physically capable of enduring this brief procedure.
On the day of the colonoscopy, an anesthesiologist introduced himself and began to explain what he was going to do. "I'm going to insert an IV and then give you two medications that will make you go to sleep. Then after the procedure is over, I'll give you another medication to wake you up. You'll be in recovery for a little while and then you'll be able to go home."
No mention of any risks.
None. He didn't ask. He didn't think to ask. He'd been reassured. He felt good. He knew they were confident and experienced.
The last thing he remembers is lying on the hospital gurney, on his left side, wearing a hospital gown and going to sleep.
When he awoke, he was in some type of recovery room. He tried to talk but couldn't since there was a tube in his mouth, down his throat and he couldn't take it out. It was attached to something. His arm had an IV attached to a pump with some clear fluids going into it. He kept hearing beeping noises and saw an EKG monitor above him.
He felt groggy. He didn't know what day it was. He wasn't sure exactly where he was. He didn't have any pain, but he coudn't exactly get up and move around either.
The only thing he could do was grunt. Not exactly great communication. She told him to rest and go back to sleep.
When he awoke again, his room was dark. Electronic beeping was continuous. There was no tube in his mouth anymore. He smelled food. It smelled like cooked chicken. And rice. And there was a sweet smell of chocolate chip cookies in the air. It smelled good and he started to get grumblings in his stomach letting him know he was hungry.
He yelled out "Hello? Anybody here?"
"Where am I and why am I here?" he asked sincerely.
"Oh dear...nobody told you? Well..." and she proceeded to explain what happened to him.
It turns out that during the colonoscopy, the GI doctor encountered some difficulty during the procedure. It seems like he recognized there was a puncture in the colon with a lot of bleeding. "He had to stop the procedure and get you into the operating room to fix the problem. A bowel surgeon had to be called in and now here you are after your abdominal surgery."
It turns out, the surgery happened two days earlier. He awoke in the surgical intensive care unit. He couldn't figure out why he had some bag attached to his belly and some nasty looking stuff was filling the bag.
"Well," the nurse continued..."since the injury to your bowel was pretty big, the surgeon couldn't simply sew it up again. Instead, he had to cut out the damaged part, sew that back together and create an opening in your bowel for your feces to leave your body. That's known as a colostomy bag. Once you heal up in a few months, you'll have another surgery and the doctor will close that up and you'll be good as new," she said.
He was upset. He was told this would be a simple, routine procedure to find out why he was having rectal bleeding. Now, he had a colostomy bag and would need to heal and would need another surgery?? WTF?
The very next day his surgeon came to visit and confirmed everything the nurse had explained to him.
He was transferred to a regular floor two days later. During that time, a nurse came by to teach him how to change his colostomy bag.
By the time he was sent home from the hospital, five days had gone by since his attempted colonoscopy. The GI doctor wasn't able to determine exactly why he was having the bleeding. This complication immediately interfered with the intended procedure. He would need another colonoscopy sometime in the future to answer that question.
Now he had at least three months of healing, dealing with a disgusting colostomy bag and then had another corrective surgery to look forward to. Ugh!
That's what prompted him to get onto his laptop once he got home and start looking for answers.
Those questions led him to search for information online. In his search he found numerous videos I created that answered his questions. He found many articles that I wrote that answered the questions as well.
He had more questions. That's what prompted him to pick up the phone and call me and ask "Do I have a case?"
The longer answer to his question was "No," and here's why.
Yes, the doctors should have discussed the risks, benefits and alternatives of the procedure with him. He says they didn't. They will likely argue that they did, at least some of the risks. They will also argue he signed the informed consent forms and he was required to read them, not just sign them.
That becomes a he said/ she said scenario. Can't bring a case in NY just on that alone.
In his case, it was.
Turns out that injury to an adjacent organ and even to the colon during this procedure is a known recognized risk and can happen even when good medical practice is used.
I explained that unless we can show that we are more likely right than wrong that the doctor violated the basic standards of good medical care, we would have a difficult time and a signifcant challege showing that we were entitled to a verdict in our favor.
If the doctor did the procedure and didn't recognize the perforation and sent the patient home...that might be a violation of the standard of care. If the physician disregarded the post-procedure complaints of abdominal pain and lack of apetite following the colonoscopy...that might be a deviation from the standard of care. If the doctor did something improper during the procedure...that might be a violation from good practice.
But here, we didn't have that scenario. So although this man went through a series of unfortunate events and complication following a 'routine' procedure, it was not a case I was able to help him with.
I share it to give you an insight and understanding of what I look for when evaluating a possible medical malpractice case here in New York. I realize you're reading this because you have questions or concerns about your own particular matter...
Well, if your matter happened here in NY and you have legal questions, then I encourage you to pick up the phone and call me. I can answer your legal questions. This is something I do every single day and would love to talk with you. You can reach me at 516-487-8207 or by email at Gerry@Oginski-Law.com. I look forward to your call.
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