Communication Post-op Blamed in Large Settlement

A 60-year-old female presented to a general surgeon for laparoscopic cholecystectomy. During the procedure, the surgeon identified the gallbladder, removed adhesions, found the cystic duct/artery, and placed clips to create a ductotomy. They read the cholangiogram as normal. 

The intra-and-extra-hepatic bile ducts, and duodenum, were checked. The operating surgeon noted no filling defect. The gall bladder and proximal cystic duct were dissected free, and surgery was completed without any noted intraoperative complications. The patient was transferred to the PACU for recovery and discharged later that day.

The day following her discharge, the patient called the surgeon’s office complaining of abdominal pain. The nurse told her that some pain is normal after surgery and encouraged her to walk and to take ibuprofen or Percocet to alleviate her discomfort. The surgeon was not informed about the patient’s call. Several days after that, the patient called again to report left shoulder pain, nausea, and continued abdominal pain that wasn’t relieved with Percocet. The nurse advised her to continue a bland diet and to call back if she had no relief. The surgeon was also not notified of that contact from the patient.

On day 12 post-op, the patient called the surgeon’s office a third time, with reports of vomiting bile, inability to eat without reflux, and a hard spot on her upper right quadrant. The practice nurse advised her to go to the Emergency Department.

There, a different surgical team noted a complete blockage of the bile duct. During corrective surgery, this team noted injuries to the biliary tree bile duct that were visible on the intraoperative images from the previous surgery. The patient was transferred to higher level care with drains attached. The liver transplant team was consulted. 

Over the next month, the patient continued with drains and underwent complex biliary reconstruction by another surgeon. She suffered from complications of hepatosplenomegaly, incisional hernias, and cholangitis. These complications required follow-up liver enzymes and an expectation that the patient would need additional procedures for scarring and stenosis. 

The patient alleged that the mishandling of the post-operative calls, and lack of follow up by the surgeon’s office, caused her post-operative complications. The case was settled in excess of $1 million on behalf of the surgeon’s group practice, but not the surgeon. 

To discuss the patient safety and risk management issues in this case, we are joined now by Dr. Douglas Smink. Dr. Smink is Chief of Surgery at Brigham and Women’s Faulkner Hospital and Professor of Surgery at Harvard Medical School. 

Q.) Doug, thank you for joining us. When we look at the case, it has a number of features that often appear in our malpractice cases. It’s got technical errors, communication, follow-up processes. As you look at some of these details, where would you start to think about preventing the harm that resulted for this patient?

A.) Well, thanks for having me. First of all, you know, I think you’re right. There are many facets to this case. And all are equally important. Interestingly, I think although the main error and negative outcome for this patient was related to the performance of the surgery, a lot of the concerns that seem to be raised are really around communication, particularly postoperatively. And particularly once the patient had gone home. That makes sense because actually, that’s what the patient sees. That’s the experience they have. They’re not awake during the surgery. They don’t know exactly what happened during the procedure. They put their trust in us to do it as safely as we can. And without the specifics of the case, it’s hard to know exactly what transpired in the operating room. 

But what is very clear to the patient is how they’re treated and communicated with, both before and afterwards. And you can see some very valid concerns about how they communicated with the office after the procedure, particularly when they had symptoms that were unexpected postoperatively.

Q.) When you look at even the post-op care, it’s not clear that there was even an initial post-op visit on the schedule. And so we think about these as somewhat system errors and that there’s a way to ensure that these things happen. What are your thoughts?

A.) Well, obviously, that’s a really important part of surgical care is not only doing the operation, but doing the follow-up. And sometimes that follow-up, if the patient is admitted to the hospital, starts in those ensuing few days. But a lot of our procedures now are outpatient, and it’s really important to make sure you have a system to ensure that there is appropriate follow-up.

I would say best practices are to schedule that follow-up right when you schedule the surgery itself. So, schedule the pre-op evaluation, which typically is required by the hospital, and then schedule the procedure and the follow-up all at the same time. That helps ensure that follow-up really does occur.

Now, sometimes that’s tricky if the patient is admitted through the emergency department, for instance. Say you’re doing an emergency surgery, it’s really incumbent on the provider to make sure that there’s a foolproof system that those patients who are cared for, whether they have an operation or not, if they need a follow-up, that that follow-up is arranged. But I think in general, most surgeons, I think we all feel strongly that the standard would be to follow-up with the patient. Oftentimes that’s done virtually now; it doesn’t have to be done in person in many instances. But that a follow-up in an appropriate timeframe after the surgery is certain to happen.

Q.) There’s also this communication that took place over the phone, with some allied personnel, and some of that initially seemed reasonable. Over time it became sort of off track. Can you describe where do you see that happening and any ways to prevent that?

A.) Yeah, I think it’s very common for patients to have questions or concerns, often related to pain, soon after a surgical procedure. And we do encourage them, both verbally and often with the discharge paperwork that they receive, to call the office with those questions. And in many instances, the patient does not speak to the surgeon right away. And many of those complaints can certainly be handled by the office staff, a provider, ideally. A provider should be making any clinical decisions. But it doesn’t have to necessarily be the surgeon. It’s important, I think, that the surgeon educate their allied providers on what is expected and what’s unexpected after certain procedures.

And when things step out of the realm of expected into the more atypical, post-operative course, we would really expect to see escalation to the surgeon about that so that they can determine if anything additional needs to be done. Oftentimes, the simplest thing is to just have the patient come into the office and be seen because, even for an experienced surgeon, managing some patient complaints over the phone or even over a video visit can be challenging.

Q.) Is it fair to speculate that there may have been a culture there where maybe the surgeon didn’t want to get every complaint from their staff?

A.) So I think that’s quite possible. Obviously, we don’t know the specifics here. And different surgeons handle this differently. I certainly know surgeons who return every call from a patient. If you’re a busy surgeon, that can be a lot of phone calls, because even surgery that goes well generates calls and questions and post-operative pain that results in the patient calling the office.

Many offices and many practices have moved towards having some allied provider who manages those initial calls. It’s hard to know if there was any message, either explicit or implicit, given to that provider that the surgeon doesn’t want to be bothered with these calls. But I can tell you that if that message is delivered, that I don’t want to be bothered by those concerns, then you run this very risk, which is then you won’t hear about the concerns. And even when they’re severe, there will be reluctance on the part of the surgical team to inform the surgeon. And that’s to the detriment of the surgeon. So, I think we all as surgeons really owe it to ourselves and to our patients to educate our team and also make an environment for our team to feel comfortable speaking up when they are concerned about how a patient is doing.

Q.) That’s great. You know, it’s interesting, and we don’t always talk about why for some people there’s a settlement on their behalf or there’s a judgment on their behalf and not other defendants. And it seems like in this case, the surgeon was not found liable, but the practice was, the surgical group. And sometimes that does really point to issues around systems and support and not setting up anybody to fail.

What are your thoughts on where this group practice needed or should be, looking more closely?

A.) Yeah, I think that’s a really important point because there are still solo surgeons, solo practitioners, but more and more people are in group practices, academic group practices, or private group practices. And that’s for good reason. There’s efficiency, for many things, including, the care of patients before and after surgery. One physician assistant or nurse practitioner could handle these calls for multiple surgeons, for instance. But it’s essential that the practice then provide a system where concerns can be escalated to the right person.

And although I think we as surgeons are responsible for our patients’ post-op care, we’re now part of larger systems sometimes. So, it’s important that group practices also think about the system they’ve created for their providers. And if it’s not a safe system, you could see how they could be seen as liable in a situation like this.

Q.) And what can we say about the clinical issues, the sort of risk or safety issues around misreading the cholangiogram or mis-identifying these systems during surgery?

A.) So those are really important and can be tricky parts of a cholecystectomy, particularly if the anatomy is abnormal in any way. Usually, it’s abnormal if there’s a lot of inflammation or perhaps infection. And we think of this as a technical error because there was an injury to the bile duct. But my sense in reading through the case is it’s many non-technical skills that actually were the ones that really were what led to this complication and what led to the lawsuit. Those non-technical skills are things like situational awareness, understanding what the anatomy is, and understanding where it’s safe to dissect or not dissect. And it’s also around decision making. So, as you interpret a cholangiogram, what is your understanding of it and then what decisions to make based on it? And I think almost certainly it’s a misinterpretation of the cholangiogram that led to this problem. Probably because the anatomy was already confusing. So ultimately it’s really decision making, not technical skill, that led to the injury of the bile duct. 

And then as we’ve talked about, another really important non-technical skill is communication. So how you communicate with your colleagues, and how you communicate with the patient, are really, important aspects of this. And my read of the case is that the communication was probably the thing that was most upsetting to the patient. Obviously, this is a really awful complication. And it has a definite impact on the patient. It actually has definite impact on the surgeon who has an error like this. It can be really mentally damaging and challenging to deal with. But obviously really impactful on the patient. But it seems to me, a key part of this case and many cases is really how the surgeon communicates with the patient after a complication occurs.


Q.) Well, thank you, Dr. Douglas Smink, Chief of Surgery at Brigham and Women’s Faulkner Hospital and Professor of Surgery at Harvard Medical School. I’m Tom Augello for MedMal Insider.