In medical malpractice lawsuits, there is sometimes a thin line between what constitutes negligence and what does not. Take for example the Cook County lawsuit of Jennifer Irwin v. Alan B. Loren, M.D. and Daniel R. Conway, M.D., Advanced Surgical Associates, S.C., 08 L 2760. The defendant doctors committed a surgical error while removing the plaintiff’s gallbladder; however, the jury found the doctors were not guilty of medical negligence.
The surgery at issue in Irwin took place at Northwest Community Hospital in March 2006. The 43 year-old plaintiff was scheduled to have her gallbladder removed in a laparoscopic cholecystectomy procedure performed by Dr. Alan Loren. Performing a surgery laparoscopically means that the surgeon relies on a camera to see inside the body’s internal structures. Doing so allows the surgeon to make a much smaller incision and drastically decrease recovery time. However, this also means that the surgeon is not directly looking at the relevant organs and needs to correctly interpret what is seen on the camera.
Unfortunately, in Ms. Irwin’s case, Dr. Loren did not correctly interpret the camera’s images, at least not at first. Dr. Loren initially misidentified Irwin’s common bile duct as the cystic duct. As a result of this misidentification, Dr. Loren incorrectly clamped the common bile duct with surgical clips and cut it. The common bile duct is responsible for carrying bile from the liver and gallbladder into the upper part of the small intestine and is an important component of the digestion process.
However, immediately after cutting the common bile duct, Dr. Loren recognized his error. He then switched from a laparoscopic procedure to an open procedure and performed the additional procedure of a Roux-En-Y repair to fix the severed common bile duct. Thankfully, Ms. Irwin did not suffer any permanent damage as a result of the severed common bile duct. In fact, the primary damages claimed in her lawsuit were due to the increased recovery time necessitated by the more extensive surgery.
The medical malpractice complaint contended that the surgeons could have avoided misidentifying her common bile duct if they had taken additional precautions during the laparoscopic procedure. Specifically, Irwin contended that the surgeons should have made sure that they had adequate visualization of the Calot triangle, which would have given the surgeons a better sense of her anatomy, prior to cutting any structures. In addition, the surgeons could have performed an intraoperative cholangiogram, which would also have provided a better view of Irwin’s anatomy. By failing to take these and similar measures, Irwin contended that both surgeons were negligent because they failed to correctly identify both the cystic duct and the common bile duct before making any incisions.
The defendants responded by first asserting that inadvertently cutting the common bile duct is a known complication of laparoscopic cholecystectomies. The defendants’ medical expert stated that they had not deviated from the standard of care and testified that he, too, had cut a patient’s common bile duct during a gallbladder removal surgery. The expert asserted that doing so alone did not constitute medical negligence, but was just a known risk of the surgery.
In addition, the defendant doctors explained the misidentification by producing evidence to suggest that Irwin had an extremely short cystic duct, which would have made it difficult for any surgeon to correctly differentiate between the cystic duct and the common bile duct. For this reason, the defendants also stated that a cholangiogram was not only unnecessary, but would not have helped avoid the surgical error. The defendants were so sure of their lack of negligence that they made no offer at any point during the trial process.
Yet the plaintiff’s attorney asked the jury to return a verdict of $239,150. The majority of the plaintiff’s damages did not spring from permanent complications due to the severed common bile duct, but rather were related to the more extensive surgery. Irwin needed to be hospitalized for an extra five days and needed to have an external drain placed to collect bile for approximately two weeks. The only permanent record of the surgical error is a six or seven inch scar on Irwin’s abdomen.
Given the relative lack of permanent damages and the fact that the supposed negligence was a known surgical complication, it is not surprising that the jury returned a not guilty verdict. In order for medical malpractice to occur, a plaintiff needs to have experienced gross medical negligence and suffered from permanent medical damages – neither was present in this case.
Chicago’s Kreisman Law Offices has been handling Cook County medical malpractice cases for individuals and families for more than 35 years in and around Chicago and surrounding areas, including Bensenville, South Holland, Orland Park, Harwood Heights, and Des Plaines.
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