Taking lawsuits personally: A surgeon’s first malpractice case


Part 1 of a series.

In all my years of practice, my dad called me at the office only twice. The second was to inform me of a horrible family tragedy. The first — well, I guess in a small way you could say it was the same.

“I hear you joined the club,” he said.


I had no idea what he was talking about. I’d recently moved from Oregon and was early in my new practice. I thought maybe he was talking about the local country club — I’d left my first job in part because I’d not gotten as busy as I’d hoped. I was in a very small clinic, and when I’d suggested they needed to hire more primary care docs, they’d told me if I wasn’t busy enough I should join the country club. (“Nice golf swing, doc! How ’bout taking out my gallbladder?” First problem: Not only do I not golf, I’m definitely not the country club type. Second problem: Same goes for my wife. Third problem: What an idiotic idea of how a surgeon gets referrals.) So, I thought, maybe my dad had wrongly heard I’d sunk to a new low to shill for work in my new job.

“I hear you joined the club,” he repeated. “I read in the paper today you’re being sued.” I nearly dropped the phone and fell over. It was a local paper in Oregon to which he referred, no longer part of my world. I’d heard not a damn thing about it; didn’t know by whom or over what. But it hit me like … well, it hit me like a lawsuit. And it was only the first blow in a series that lasted over a couple of years, wrenching me back and forth, up and down, tearing me apart in every possible way. Robbing my sleep, souring my outlook, breaking my cherry in the most bloody of ways.

At the time my dad was chief judge of the Oregon Court of Appeals. My brother was (and is) a very big-time lawyer. Neither of them ever understood how or why it was so deeply painful. “Why are you taking it so personally,” they’d ask, completely seriously. “It’s just the way the system works.”

I forget how long it was between the phone call and the time when a county sheriff strode into my office and, in front of the patients in the waiting room, asked my receptionist where I was. “Sorry, doc,” he said as he handed me a subpoena. I absolutely do remember how my hands shook as I opened it. “Wanton … willful … malicious … gross negligence …” I read, my heart both racing and sinking (where we now live there are hydroplane races every year. I’m aware it’s possible both to race and to sink.)

So now I knew: It was a horrible case, the worst case ever, one which gave me and will always give me nightmares, whether I’d been sued or not. I’d been called one evening by a family doc in a nearby town, asking to transfer a patient he’d been caring for for a couple of days. A man in his forties, he’d been admitted with vomiting, some diarrhea, minimal pain, and treated for presumed gastroenteritis. After a two or three days with no improvement, he was transferred to me late one night. I first saw him after midnight, at which time his vital signs were OK except for a slightly rapid pulse, consistent with his obvious dehydration. His belly was distended but not remarkably tender; lab work not scary other than signs of dehydration; and his x-ray looked like an early bowel obstruction.

I decided he needed an nasogastric tube and vigorous rehydration, and a recheck in a few hours. When I saw him at 6 a.m. he hadn’t decompressed his belly in any way, and his vital signs were worse (pulse up, blood pressure down). I called the OR and got him there as fast as possible.

Having had another abdominal operation only a couple of months earlier, somewhere else, it had been a reasonable assumption that his obstruction was due to adhesions therefrom (in fact, his doc hadn’t mentioned the recent surgery when he’d called me, perhaps to justify his diagnosis of stomach-flu). So it was a big surprise to find volvulus of the right colon (cecum); shocking, in fact. Cecal volvulus has a quite characteristic appearance on x-ray, and there had been no sign of it on his. Dusky and congested, the colon nevertheless looked viable: the options are to untwist it and see if it is OK after re-perfusion, or to remove it.

“How’s he doing?” I asked the anesthesiologist. I didn’t want to resect and reattach if the man was shocky — more chance of healing problems. “He’s OK,” I was told. “Making lots of urine, good oxygenation.” As is the case with volvulus, the right colon was nice and floppy, meaning a piece of cake to remove it. Also, avoiding untwisting it meant preventing accumulated bad stuff from being washed back into the circulation — and it also would guarantee against recurrence. I clamped off the twisted blood supply, snipped out the right colon quickly and easily, and sewed the end of the small bowel (ileum) to the transverse colon beyond the point of resection. Sewing ileum to colon is called “ileocolostomy.” (Keep that word in mind, would you?)

“Nice work,” my partner said. “He’s going to thank you for it. He should do great.” He didn’t. His blood pressure had, it turned out, been low during the whole operation: The anesthesiologist hadn’t mentioned it because every other parameter had been fine (not that it would have changed much in the long run had I known). And it remained low for the rest of his life, which was about five days. From the recovery room I transferred him to ICU; got consults from every specialty imaginable. Remaining profoundly hypotensive, he required massive amounts of fluids which ultimately ended up in his tissues, swelling him beyond recognition as a human being. All supportive measures — ventilation, antibiotics, blood-pressure drugs — failed to bring a response. His family was dumbstruck, as was I. His degree of sepsis didn’t make sense under the circumstances, until an x-ray a day or two later showed air in his portal vein. The portal vein drains blood from the gut and into the liver. Very rarely, in the face of infection in the belly, the vein can become clotted and infected, essentially a universally fatal condition called suppurative pyelephlebitis. It’s the only case I’ve seen, despite caring for people with massive intra-abdominal infections, large portions of dead bowel, conditions way worse than this man’s.

Every hour of the day and night when I wasn’t required elsewhere, I was at his side in the ICU or at his family’s. It was agonizing for everyone, and it was soon clear there was no chance of survival. When he died, I felt drained for weeks.

The main issue in my mind was whether I should have operated immediately when I saw him: Did I miss the volvulus on the x-rays? Would those few hours have made the difference? I went over the x-rays with every radiologist in town; I discussed every aspect of the case with every surgeon. The films, they agreed, didn’t show it. And they all felt the seeds had been sewn during his hospitalization before the transfer. Undoubtedly the portal vein was developing clot even then: It was one of those rare and awful things for which there’d been no solution by the time I first saw him. Small comfort, even if true.

It was and remains the worst case of my career: A death in a previously healthy person (he was probably an undiagnosed diabetic, according to labs during his hospitalization — it might have increased his susceptibility) from an initial condition that shouldn’t have been fatal, for which the operation itself was smooth as could be, and about which there will always be questions in my mind. I’ve lost other patients; but never so unexpectedly, so frustratingly, so hauntingly. It would have been on my mind forever, no matter what. But with the lawsuit, I found myself in a battle against people I thought were my allies: the referring doc, the hospital, a battery of lawyers, nurses. It opened my eyes, I suppose, to the realities of the world of medical malpractice. Knowing reality is good, so they say. But it also shut my heart part way to the love I’d had for what I do.

Sid Schwab is a retired surgeon who blogs at Surgeonsblog and is the author of Cutting Remarks: Insights and Recollections of a Surgeon.

Image credit: Shutterstock.com


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