‘I always do X, so I must have this time, too’

When you remove 250 gallbladders a year, it’s hard to remember each and every one. In fact it’s impossible. Luckily, you don’t have to. In medical negligence law you can rely on your standard practice: I always do X, so on that particular occasion I must have done X. I can’t actually remember, but I must have. This comes in handy when a patient sues, claiming you never explained the risks of the procedure. In a recent case out of British Columbia, the defendant surgeon testified that it was indeed his standard practice to inform patients of the risks of gallbladder removal. “He said he always does this,” noted the judge. “It has been drilled into him since medical school.” The surgeon said it was simply not possible that he might have missed mentioning any of the risks: bleeding, bowel injury, bile duct injury, hernia, chronic diarrhea, and a 1% chance that things might go badly and he would have to escalate from laparoscopic surgery to full-on open surgery. (A bile leak was what in fact befell the patient, who claimed it caused her severe pain before it was corrected.) The judge accepted the surgeon’s testimony, and found that he had properly explained the risks. He was held blameless. Something else that helped the surgeon at trial was the fact that the patient’s courtroom testimony was, as the judge politely put it, “not believable.” For example, the patient, rather bizarrely, claimed that at the initial consultation with the surgeon, a physical examination was never conducted. “It is clear that one was conducted,” ruled the judge, noting that the results of said examination were right there in the clinical notes. The patient also testified that during the run-up to the operation, she “felt great.” On cross-examination, the surgeon’s lawyer pointed out that at the pre-trial “discovery”—where people are questioned under oath—the patient had said she was “in pain and not functioning properly.” Her explanation of this glaring contradiction was that, at the pre-trial discovery, she had used “the wrong words.” No one disputed that in order to convey the concept of well-being, there were better words she could have chosen other than “pain” and “not functioning properly,” and that this was not merely a question of linguistic nuance. Furthermore, the judge raised the following question: If the patient had felt great, why did her family doctor send her to a gallbladder surgeon? This, said the judge, “simply makes no sense and is not believable." After holding the surgeon blameless, the judge nevertheless went on to consider an additional legal test, just to cover all the bases: Suppose for the sake of argument that the surgeon had failed to properly explain the risks. Would the patient have gone ahead with the procedure anyway? This test has two components. First, would this particular patient have gone ahead, and second, would the proverbial “reasonable person” have gone ahead? The answer to both was yes. Regarding the proverbial “reasonable person,” the judge found that the overwhelming majority of people who experience painful gallstone attacks elect to proceed with this kind of surgery. Therefore, that is obviously what a reasonable person would have done. As for whether this particular patient would have elected to proceed, the judge needed to address several peculiar issues, the first being the patient’s dog, who was very ill and had only two legs. The patient testified that she would never have agreed to so risky a procedure, because this poor animal needed her. Weirdly, though, she also testified that she had the dog put to sleep prior to the surgery. “She did not explain why this was necessary,” said the judge, noting that “the surgery was a day surgery, meaning the plaintiff would not be required to leave the dog unattended overnight. Her evidence regarding her dog and its connection to the surgery, frankly, made little sense.” Moreover, the patient testified that she trusts doctors, does not question them, and does whatever they recommend. She even talked about a previous hysterectomy surgery, stating that she did not worry about the risks. Also, the judge found that the patient’s tolerance for pain is “minimal,” and she is “not a stoic person.” This was reflected in the evidence of what transpired after the surgery, where she was unable to tolerate the pain associated with the usual endoscopic retrograde cholangiopancreatography and percutaneous drain procedures, and had to be wheeled into an operating room and put under deep sedation. This is not normally done. “Given the plaintiff ’s limited tolerance for pain,” the judge said, “it is simply unbelievable that she would risk another gallstone attack.” Finally, the judge noted that the patient had an extensive history of surgeries, including the hysterectomy, a Caesarian section, umbilical hernia repair, breast augmentation and a facelift. “She was clearly not averse to undergoing surgery, and had little concern about the risks." Bill Rogers is a Toronto lawyer and writer covering medical and pharmaceutical issues.

‘I always do X, so I must have this time, too’

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