THE ANSWER IS MAYBE AND HERE'S WHY...
The call comes in.
I had a colonoscopy, and the doctor perforated my colon. I needed emergency surgery to fix it. Now I have a colostomy bag, and I'll need another surgery in a few months to reverse it. Do I have a case?
What do you think?
The short answer is probably not and here's why.
Doctors who perform colonoscopies are aware that perforating the colon (making a hole by mistake) is a known recognized risk of the procedure. Obviously no doctor wants to make a hole in the colon, but once in a while it does happen. The fact that it happens is, according to the opinion of every physician I've ever talked to about it, is not a departure from good and accepted medical care.
The moment I say "It's a known risk of the procedure," the caller gets upset and usually says...
But I was in the hospital for weeks, and I couldn't eat solid food, and I needed to change my bowel movements in this disgusting bag...
Yes, that's all true...but your injuries did not result from a departure from good medical care. Here's an important point to keep in mind when asking whether you have a valid case...
In order to show that you have a valid medical malpractice case, I must show
(1) That you are more likely right than wrong that your doctor violated the basic standard of medical care.
(2) That you are more likely right than wrong that the wrongdoing caused you injury, and
(3) That your injury is significant and/or permanent.
All of those things must be confirmed by a doctor who has either treated you or reviewed all of your records.
If any one of those things is missing, then there's no way to proceed forward with a case. The first part of any evaluation by an attorney is to determine whether there was wrongdoing. In other words, was your doctor careless? If he was not careless, then we don't even get in the door. If he was careless, then we have to determine whether there is a direct link between his carelessness and your injury.
Then, we must look to see how badly injured you were as a result of his carelessness.
When we claim that a doctor failed to timely diagnose your bowel perforation, the doctor and his attorney will argue that it is a risk of the procedure. Keep in mind that even if a doctor failed to timely diagnose your bowel perforation, he will still argue that there was no way they could have detected this for a number of different reasons...
- This happened because of a thermal burn,
- This was a microscopic tear and only got worse after your surgery,
- You had prior surgery and you had lots of surgical adhesions (scar tissue),
- You had radiation therapy in that area that made your bowel tissue very friable (and weak).
In addition to these specific defenses, we often see these 3 defenses thrown around as well...
(1) We didn't do it.
(2) If we did it, so did you.
(3) Even if we did it and you also did it, your injuries aren't as bad as you claim them to be.
These cases often come down to a battles of the experts. By law, we are required to bring in medical experts to testify at the time of trial to explain to the jury why your doctor was careless.
Why his carelessness caused you injury.
Our experts need to be able to explain how your injuries would have been different or nonexistent if your doctor had done the right thing. Likewise, the defense attorneys will bring in their own medical experts to say just the opposite. Then you have a battle of the experts. Then the jury must determine whether we are more likely right than wrong that what we are claiming is true. If the jury believes us, then you will receive a verdict in your favor. If the jury does not believe us then the doctors and the hospital you sued will receive a verdict in their favor.
IS THIS A KNOWN, RECOGNIZED RISK OF THE PROCEDURE?
You should know that the medical community recognizes that there are risks with every surgical procedure. Making a hole in the bowel happens to be one of those risks associated with a colonscopy. It's a fact. It's an unfortunate reality.
How come I heard that my neighbor had a case, and his colon was perforated during a colonoscopy, but you're telling me I don't have a case?
The reason your neighbor has a case is because during his procedure the doctor created a hole in the colon and failed to recognize it. The following day your neighbor called his doctor complaining about belly pain and back pain. He was 'poo-pooed' away by the doctor claiming it's normal to have discomfort after colonoscopy. Two days later, your next door neighbor spiked a fever and got very sick. Only after calling his doctor's office repeatedly to advise him of these worsening problems did the doctor suggest going to the emergency room.
In the emergency room your neighbor had an MRI which showed some type of fluid in his belly- where it shouldn't have been.
Your neighbor was rushed into emergency surgery where surgeons found a belly full of fecal material (bowel movements) where it clearly should not have been. After cleaning him out, they found the hole that was made during the colonoscopy. Your neighbor then had to get a colostomy bag and remain in the hospital for 10 days on heavy-duty antibiotics.
Here's the key to determining whether you have a potential case:
The fact that there was a perforation during your colonoscopy is, in all liklihood, not malpractice. It's the FAILURE TO RECOGNIZE the hole that is often a departure from good care. When the patient called to complain, the first thing the doctor should have done is get the patient back into the office for an evaluation. Additional tests may be ordered which may reveal the ongoing problem.
If this fails to detect the problem and the patient continues to complain, the next step is usually to send the patient into the emergency room for a full work-up and evaluation. Good medical practice requires that the physician recognize the injury at the time it happens. If he recognizes it, he needs to call an ambulance immediately.
An ambulance will take you to the emergency room.
In the emergency room they will confirm that you have an acute belly as a result of a perforated colon. That requires emergency surgery. A general surgeon or a colorectal surgeon will be called in to perform your surgery. This might be done laparoscopically. That's where doctors make tiny incisions in your belly in order to use a small fiber-optic camera to help them close your bowel injury. In other cases, your surgeon will need to do abdominal laparotomy.
That means your surgeon will have to open up your belly in order to repair the hole.
I have learned from my medical experts that this type of bowel injury can be fixed in one of two ways.
First way to fix the bowel:
The first is to simply oversew the bowel and a close up the hole that was made. This can be done when the hole is small. The surgeon must make sure when closing up the hole that the seal is watertight. If it's not watertight, the fluid and contents from within the bowel will leak out into the abdomen.
If that occurs, the patient will likely get infected and can suffer a systemic infection known as sepsis.
If sepsis is not recognized in a timely fashion, you can die.
2nd Way to Fix the Bowel:
The second way to fix a bowel perforation, according to my surgical experts, is with a procedure known as an end-to-end anastomosis. Here's what that means... Imagine you have a long flexible tube. In the middle of that tube there is a massive hole. You need to do something to close up that huge hole in order to prevent bowel fluid and bowel contents from leaking out into the abdomen.
The surgeon will cut to the right of that large hole and also to the left of that large hole and physically remove the hole and the surrounding tissue.
The problem is that you are left with two open ends of the bowel. The surgeon must take the two open ends and bring them together. He must make a watertight seal. In order to allow the two ends of the bowel to heal, the contents of the bowel must be diverted. That's why you will see patients who have this injury have to wear a bag on their belly, usually hidden by a fanny pack.
Medically, this is known as a colostomy bag.
Imagine a ziploc bag that is surgically attached to a hole coming out of yoru belly. The ziploc bag is there to capture all of your bowel contents that normally would pass through your bowel and exit into the toilet when you go to the bathroom. This bag must be changed multiple times a day. My clients who have experienced this tell me it's not fun. It is not pleasant.
It is disgusting. It is foul. But, the reality is that it has to be done. Your body needs time to heal. My surgical experts tell me that it takes approximately 3 months for the bowel to heal up properly, assuming no complications and no infections.
Only after the bowel is healed, will the patient have to undergo another surgery in order to reverse the colostomy.
What this means is that now your surgeon will close up the hole in your belly and there is no longer any need to divert your bowel contents. Once your colostomy is reversed, you go back to healing again and then hopefully resume normal eating and activity.
BUT WAIT A SECOND...
HOW MUCH OF A DELAY WAS THERE FROM THE TIME YOUR PROCEDURE WAS DONE UNTIL YOUR INJURY WAS RECOGNIZED?
In order to properly evaluate whether you have a valid case, I must ask how much of a delay was there from the time of your colonoscopy until the time that a doctor recognized that you had a hole in your bowel? Why is that important? It's important for one key reason. Let's say for example that there was a one-day delay in recognizing your bowel injury following your colonoscopy. Once they recognized it, you had to be rushed into surgery. It turns out that the hole in your bowel was large.
You needed an exploratory laparotomy to open your belly.
You needed an end-to-end anastomosis. You needed to have your bowel contents to be diverted and come out through your belly. Three months later, you needed surgery to reverse the opening in your belly. Do you have a case in that instance?
In all likelihood, the answer would be no and here's why...
You might be thinking
Wait a second. You told me earlier that if a doctor failed to diagnose my perforation at the time of the procedure, that would be a violation of the basic standards of medical care. If so, why don't I have a case?
While it would be true that the failure to timely recognize your bowel perforation would be a departure from good medical care, we must then look to the second part of what the law requires to answer whether you have a good case. Legally, that second phase is known as causation or proximate cause.
As I mentioned earlier, we must show that there is a direct link between the wrongdoing and your injury.
Here's the key...
It your injury or outcome would likely have been the same if this was timely recognized, then it's highly unlikely we could show that direct link between the wrongdoing and your injury.
Using the same example as a moment ago, even if the doctor finally recognized your bowel injury one day later, the treatment you would have received to fix your bowel would have been the same as the treatment you would have received one day earlier if it was timely recognized.
That means that the damages you suffered would likely have been the same regardless of the one-day delay.
That's the key!
If your injury or damages would have been the same or similar compared to the injury you would have had if your doctor had correctly realized the problem, then it will be very challenging to say that you suffered significant and permanent injury as a result of your doctor's carelessness.
If however, a board-certified surgeon would be able to say with a reasonable degree of medical probability that had you received immediate treatment at the time of your original procedure, you would not have needed major abdominal surgery consisting of an end to end anastomosis with a colostomy bag, but rather could have simply and quickly sewn up the bowel without any issue, then we can show that your injuries and your outcome would have been significantly different.
In that instance, you have a much greater chance of being successful and being able to proceed forward compared to the other scenario I described a moment ago.
So, do you have a case if there was a perforation to your colon during colonoscopy?
It depends on whether the hole was detected during the surgical procedure when it was made. If your doctor failed to detect the perforation and you continued to complain and your condition worsened, then you need to speak to an experienced medical malpractice attorney who practices here in New York immediately. Have questions about your matter? Call me. I answer questions like yours every day and would love the opportunity to talk with you. Call me at 516-487-8207.
To learn more about colon perforation, I invite you to watch the video below...