It’s Not Over Till the “Fat” Surgeon Sings – Or Is It?

It’s memorable for a Certified Legal Nurse Consultant when a case teeters, with strong support for both plaintiff and defense. With the sides evenly balanced, I concluded that the case of Mrs. N.’s gastric bypass surgery wouldn’t be over till the “fat” surgeon sang. It would take an expert bariatric surgeon to make or break the case for my attorney-client, who was representing the plaintiff. This was the first legal nurse consultant case I’d reviewed that could have gone either way, and I learned a lot from it.

Mrs. N., a grossly obese (BMI 55, weight 312 lb.) 37-year-old woman underwent elective roux-n-y gastric bypass surgery at General Hospital. She suffered multiple adverse complications:

• Splenic vein laceration, splenic diaphragmatic rupture (a questionable traction injury usually resulting in splenectomy), resultant hemorrhage (massive blood loss, approximately 7000 cc) and splenectomy.
• Incidental cholecystectomy with bile leakage and liver biopsy.
• Partial gastrectomy due to intraoperative stomach laceration/ischemia with resultant prolonged hospitalization.
• Abdominal wall hernia requiring repair.
• Extended requirement for ventilator assistance.
• Gastrojejunostomy leak and Hickman catheter placement.
• Pneumonia, pancreatic inflammation, wound dehiscence, anemia and cellulitis of trunk.
• Anastomotic leak causing intra-abdominal abscess and sepsis.

Intraoperatively and in the immediate postoperative period, she received 14 liters crystalloid, 10 units red blood cells, 2 units whole blood and 4 units of fresh frozen plasma.

My CLNC^® Services Went Beyond Basic Case Review

I based my opinion on the American Society of Bariatric Surgery’s report on risks of surgical treatment. Immediate postoperative mortality rate for this surgery is relatively low. Early postoperative morbidity may be as high as 10% from wound infections, dehiscence, leaks from staple breakdown, stomal stenosis, marginal ulcers, various pulmonary problems and deep thrombophlebitis. Splenectomy is necessary in 0.3% of patients to control operative bleeding. The aggregate risk of the most serious complications, gastrointestinal leak and deep venous thrombosis, is less than 1%. Major perioperative complications include hospital stays greater than seven days, gastrointestinal leak, abscess and wound dehiscence.

My case analysis revealed possible medical negligence by two potential defendants: Mrs. N.’s surgeon, Dr. P., and the hospital. In my expert opinion as a Certified Legal Nurse Consultant, my attorney-client needed a bariatric surgeon to review the medical records and determine whether the surgeon had breached the standard of care. However, I did not recommend retaining a surgical expert until we had a complete set of medical records.

In addition to preparing my case summary, I:

1. Requested a complete set of medical records.
2. Organized the medical records for easy review and sharing with a potential medical expert.
3. Called the medical examining board to investigate physician credentialing.
4. Prepared an information package for the attorney about bariatric surgery and splenectomy, along with medical literature.
5. Provided the name of a potential testifying expert, a board-certified bariatric surgeon, along with curriculum vitae and contact information.

I Questioned the Doctor’s Qualifications and the Hospital’s Credentialing Practices

In my case review I noted that Dr. P. was not affiliated with the American Society of Bariatric Surgery. I also noted that the operative report was dictated five days after the surgery. In his report Dr. P. did not refer to Mrs. N.’s participation in the hospital’s complete preoperative physical and psychological evaluation, nor was any documentation of her participation provided.

I would have to address additional questions concerning the physician’s credentials:

• Was Dr. P. board-certified in general surgery?
• Was he properly credentialed to perform this surgery at General Hospital?
• Did Dr. P. negligently perform a procedure beyond his skill, experience and hospital privileges?

The last two questions would require the expertise of a bariatric surgeon to answer.

The hospital was considered a potential defendant because of possible negligence in granting staff privileges to the physician and in failing to adequately investigate his background, qualifications, moral character and experience. Another hospital issue for the medical expert was whether the hospital offered adequate support for all aspects of perioperative assessment and management for its bariatric program.

The Plaintiff Had a Good Case

I identified Mrs. N.’s substantial injuries and damages as follows:

• Extensive surgical procedure (nearly eight hours for surgery that should have lasted three to four hours).
• 27-day hospitalization with rehospitalization due to pneumonia and sepsis.
• Abdominal and Hickman catheter infections.
• Removal of spleen, the body’s defense against infection, and related thrombocytosis.
• Prolonged abdominal pain.
• Massive blood loss requiring replacement and resulting in anemia.
• Extensive use of antibiotics with development of methicillin-resistant staph aureus (MRSA).
• Abdominal wall hernia requiring repair.

At the time of my report the extent of Mrs. N.’s recovery was not known.

Possible causes of Mrs. N.’s injuries included Dr. P.’s poor surgical technique and his negligence in performing an operation beyond his level of skill and expertise and the hospital’s negligence in credentialing and granting privileges to Dr. P.

So Did the Defense

The following causation defenses were identified:

• Mrs. N.’s surgical weight loss goal was met. She lost 72 pounds (5 months postoperatively her weight was 240 lb.). Weight loss usually reaches a maximum of 48-74% of the patient’s excess weight at 18-24 months postoperatively.
• She had multiple abdominal operations in the past, including a dilatation and curettage, cesarean section, exploratory laparotomy, hysterectomy and oophorectomy. Formation of postoperative adhesions increases the risk of subsequent surgeries.
• Her medical history includes overweight for 20 years, migraines, seizure disorder, depression, sleep apnea and smoking (1 ppd).
• Obesity increases risk of hypertension, hypertrophic cardiomyopathy, hyperlipidemia, diabetes, cholelithiasis, obstructive sleep apnea, hypoventilation, degenerative arthritis and psychosocial impairments.
• She did not obtain psychological counseling recommended for history of depression.
• There is documentation of noncompliance. She violated hospital oral intake restrictions. Nursing documentation reflects she swore at the nurses.

The biggest problems for the plaintiff’s attorney with the case were:

1. This was an elective surgery with documentation of accepted risks and informed consent.
2. Obesity predisposes the patient to complications, many of which Mrs. N. suffered.

The Face-to-Face Meeting Gave My Attorney-Client Just What He Needed

At the time I reviewed this case, I was quite busy. The attorney and I had communicated via email and UPS – we had never met in person. At the last minute I decided to take the extra time to meet with him and discuss case issues in person.

In this one-hour meeting the attorney and I had time to discuss my opinions which gave the attorney the “plaintiff picture.” We also went over the potential strong defenses, including the complexity of the case and the plaintiff’s potentially harmful behaviors of smoking, documented verbal abuse of nurses and violation of oral intake restrictions.

The outcome of our meeting was that the attorney decided not to take this case. Without a thorough review of the medical records by a CLNC consultant, the strong defenses might have gone unnoticed. I helped the attorney decide that it probably wasn’t worth his time or additional dollars to hire the physician expert needed to pursue the case.

My contribution made a big difference to my attorney-client. My CLNC services saved him money. A medical expert review could have cost the attorney thousands of dollars just for a screening opinion. And this case might have cost tens of thousands more if it went to trial, with no guarantee of a plaintiff verdict.

The Attorney Meeting Paid Off

I highly recommend scheduling a face-to-face meeting with the attorney-client to wrap up every case. I’m glad I did.

The meeting enhanced my understanding of how the attorney used my opinion to determine whether he would accept this case.

I also learned how selective plaintiff attorneys are and how much of a business decision it is to accept a prospective client’s case. Just because there is negligence doesn’t mean the attorney will take the case. My attorney-client taught me the additional considerations that ultimately made him decide not to invest in this case. He even shared how he feels about representing a “problematic” versus a “strong” witness and the differences between the two.

Most important, that meeting gave me the opportunity to sow seeds for future CLNC business. My client had time to gather additional information about me and my company. Afterwards I sent a follow-up letter thanking him for the opportunity to consult on the case and identifying other CLNC services my firm could provide. The “fat” surgeon didn’t sing, but this case still ended up a “win” for both my CLNC business and my client.

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