Case Studies: Malpractice or Bad Outcome?

Ms. Foltz: As your lawyer, I’m going to always advise you to send it, because what’s the downside? One important caveat to that, though: Never let a lawyer tell you what the standard of care is.

Dr. Kennedy: This is one of the reasons why I think it’s very important to use suction traps with the microdebrider-so that all of the material gets submitted in case there’s a tumor hiding somewhere in there.

Ms. Foltz: In Illinois, the law requires that all tissue removed in a hospital setting be sent to pathology. It may not be in your hospital bylaws, but don’t assume that means it’s not a state law.

Was it appropriate to do the lateral rhinotomy or was that outside the standard of care?

Dr. Goldberg: I’m one who typically approaches these with an endoscopic approach; I think my visualization is better. I definitely believe you should inform the patient that there are two ways to do this operation.

What should be disclosed to the patient?

Ms. Foltz: I have always believed that the standard of care requires us to disclose unanticipated outcomes, because if something goes wrong during surgery or during treatment, you can’t get appropriate informed consent without disclosing what really happened. Now, when you’re talking about seeing someone else’s mistake, you are not legally obligated, at least not in Illinois and not by federal law, to disclose that you think the other person may have made a mistake.

CASE #2

A 42-year-old male is scheduled for bilateral total ethmoidectomy. Preoperative CT shows mild to moderate ethmoid disease bilaterally. No polyps, but CT revealed a low-lying skull base. Endoscopic sinus surgery was performed. The procedure took 2-1/2 hours and the blood loss was significant (900 cc). Postoperatively, the patient had a CVA and altered sensorium. At pathology, he had both gray and white brain matter bilaterally. There was a brain hemorrhage; he also had an aneurysm that had to be fixed by neurosurgery. The patient survived but had permanent brain damage as a result of the injury.

Is this a case of negligence or just a bad outcome?

Dr. Stankiewicz: This was a very interesting case I participated in about 15 years ago. It changed my mind about what is defensible and what isn’t. Basically, the decision at trial was this was a low-lying skull base-it could have happened to anybody-and this was a bad outcome but not enough to prove negligence.