Attaching Intestine to Vagina Not Malpractice?

I was recently given a story published in the Herald-Sun Newspaper (of North Carolina) about a lawsuit against Duke University Medical Center and two doctors involving a female patient who had part of her small intestine removed, but instead of re-attaching the intestine to the rectum the surgeons attached it to the woman's vagina. The family sued.

According to the Herald-Sun article, Duke University and the two surgeons fought the lawsuit because they believed it "did not meet the requirements for a medical negligence claim because it did not conform with a legal doctrine that says that, in certain medical malpractice cases, only an expert would be able to determine whether malpractice occurred."   Apparently the plaintiff's lawyer relied on a res ipsa loquitor argument rather than present expert testimony to claim attachment of the intestine to the vagina is malpractice.  As many of our readers know, it can be difficult in certain states and against certain defendants to find experts willing to sign off on a lawsuit and testify.

Amazingly, a lower court judge agreed with Duke University and the two surgeons and dismissed the case.   However, the appeals court overruled the lower court and is letting the lawsuit proceed.  Per the Herald-Sun article, "the Court of Appeals said that, in this case, a layperson would be able to determine negligence.  'It is common knowledge and experience that intestines are meant to connect with the anus, not the vagina, even following a surgical procedure to correct a bowel problem,' the Court ruled.  The Court of Appeals rejected Duke Hospital's argument, which included technical and medical terminology."

What is going on here?  Where is the disclosure, apology, and early offer compensation?  It appears the Duke defense lawyers were not arguing the case on the damages, so it makes me wonder if any fair/reasonable offer was made to the family, or not?   And why are patients/families filing lawsuits over something so clear cut, regardless of whether they can find an expert willing to rat on a prominent medical facility?  Why did it need to go this far?  At the minimum why weren't Duke and the doctors in the newspaper saying something like the following: "We made a mistake, we are sorry this happened, we have apologized to the patient and family, we have learned from this mistake so it won't happen again, and we made a fair offer of compensation to the family, but the family believes the situation is worth more money...we are simply here to ask the court what is fair"?   Why didn't we hear or read about that?

So often hospital CEOs and other medical & insurance leaders promise me they have a disclosure program and they would never put a family through something like what was described above.  I'm sure some of these people are serious and genuine, while some others are giving me happy talk.  Which camp is your hospital or insurer in?  Would you consider running this case by your leadership team - including the lawyers (in house or outside counsel) and seeing how they would handle it?

You know, just because a lawyer can "win" a case doesn't it make right.  Not right for the family that needs closure, not right for the doctors who are emotionally traumatized and also need closure, and not right for the hospital that will suffer enormous PR damage, loss of customers, etc.

To help your hospital embrace disclosure, schedule a Sorry Works! presentation or training seminar today by calling 618-559-8168 or e-mail doug@sorryworks.net.

And, remember, to save the date of Thursday, November 13th at 1pm ET/10am PT for the Sorry Works! Train-the-Trainer Webinar.

Sun article referenced above: http://www.heraldsun.com/news/x2042199588/Appeals-court-rules-lawsuit-can-move-forward-against-Duke-Hospital.

And here is another article regarding the case: http://www.courthousenews.com/2013/09/09/60964.htm.