Clinical Sequence

Description

A 4-year-old child underwent surgery to remove a very large hemangioma on her face, and was left with a profound left facial paralysis, due to facial nerve damage during the procedure.

Key Lessons

• If the informed consent process is silent on the major risks to the surgery, the patient or family may only anticipate a very satisfactory outcome, leading to extreme dissatisfaction
• Even the best surgeons have complications–how they subsequently manage them is key.
• Being present after an unexpected complication may represent the best effort to re-establish trust

Allegation

The child’s parents sued the surgeon, alleging negligent performance of surgery, resulting in the transection of the facial nerve, and failure to intervene within the critical postoperative period.

Analysis

1. The operative note signed by the surgeon is silent regarding the identification and isolation of the facial nerve.
   Tumors involving tissues around the ear, particularly immediately in front of the ear, are located near the exit of the facial nerve from the skull and its continuing course across the face. Great care must be exercised during surgery in this area to avoid damage to that nerve and to minimize the effects if it is damaged. It is important to avoid taking routine preparation for granted, so documenting what the routines are and the fact that they were followed carefully to prevent or minimize injury is key.
    
2. Excessive bleeding was encountered in the removal of the tumor.
   In general, an operation can always be abandoned if necessary. It is the hardest thing to do, so a call for help is better than being stuck. Serious difficulties may call for another pair of eyes in the room – someone who is fresh to the scene.
    
3. Postoperative monitoring seemed to stop after the patient was discharged, and the facial nerve damage was not identified for several months.
   Complications are inevitable in the course of high-risk surgery. Postoperative management should be tailored to capture the most severe postoperative complication related to any given procedure. Key factors in mitigating risk include early recognition of the complication, and a plan to manage it in a timely manner. Documentation should indicate that the plan was executed. The attending surgeon should address any complications with the patient and family in a direct and forthright manner, to afford the optimal opportunity to recover.
    
4. The parents’ expectations for a successful surgery were very high. It does not appear that they anticipated the complication or the prolonged period of intubation that was required following the surgery, leaving them feeling misunderstood and disillusioned about the care their young daughter received.
   Managing the expectations of patients and families is critical when performing surgery. During the informed consent process, it is prudent to discuss the most serious risks of the procedure, even when their likelihood is relatively low. If the worst complication does occur, patients and families are less likely to view it as the result of negligence if they at least understood and considered it ahead of time. Exaggerated reassurances that a particular complication should/will not occur are similarly risky.
    
5. The parents believe the surgeon avoided them in the immediate postoperative period when intervention could perhaps have improved their daughter’s outcome. The first evaluation for possible repair/reconstruction was performed six months later – perhaps too late to expect successful recovery of nerve function.
   Being present for the patient/family and coordinating care fosters their sense that they are well cared for, and may help optimize the clinical outcome. Delaying conversations about an post-operative symptoms jeopardizes the relationship and the quality of care.
    
6. No specific mention is made on the consent form or in the preoperative documentation of the possibility of this complication, which is a recognized risk of this procedure.
   Litigation underscores the need for a more structured approach to informed consent. Actively engaging patients/families in their own health care through the informed consent process offers a level of protection. Although substandard informed consent is uncommon as a sole allegation in malpractice litigation, it is an issue in almost every case. Plaintiff attorneys bring forth informed consent issues to undermine the jury’s perception of the quality of a defendant provider’s care, which has the effect of eroding confidence in his or her skill and credibility. The fact that most procedures don’t involve a complication is no guarantee that it won’t be encountered. When it is, a previous honest conversation with the patient/family helps everyone reach a shared understanding of the situation.
    
7. Blood loss was not recorded in the operative report.
   It is customary to record estimated blood loss in the operative report, particularly if the blood loss was large. Key risk reduction is to document what the routines were and the fact that they were followed carefully.
    
8. The patient was lost to follow-up.
   When a patient’s post-operative course is difficult, close monitoring and follow-up take on added significance. This requires an explicit and reliable system to maximize the potential that referrals and follow-up appointments for careful evaluation and treatment are made and kept.
    
9. The surgeon testified at her deposition that the facial nerve was apparently transected during surgery; the plaintiff’s expert testified that the surgeon should have identified the facial nerve at the time of surgery, rather than assuming she would be operating above it.
   Experts may disagree over whether a surgical complication is the result of negligence. Negligence in managing a complication is a separate issue. A subsequent question will be whether a failure to identify a complication postoperatively in a timely way led to specific damages. In the midst of such gray areas, part of the calculation about whether to pursue a jury trial or an alternative form of resolution is the fact that injured children are extremely sympathetic plaintiffs. When a payment is the appropriate option for the defense, mediation can be an effective forum for reaching agreement on the amount and structure.
    

Disposition

Through mediation, the case was resolved for more than $1 million.