Final Verdict: Unsuccessful Treatment Not Negligent
All medical procedures carry risks, including the risk that the doctor may make an error. Surgical errors can be caused by slight variations in a patient’s anatomy, by the limitations of imaging or endoscopy equipment, or by the challenging or experimental nature of the procedure. In these instances, medical error is not necessarily medical malpractice. In order to prove a medical malpractice claim, a medical malpractice attorney must show that the surgical error was preventable, foreseeable, and the result of 
a lapse of the standard of care.
Doctors who understand these risks should be deliberate in explaining the risks ahead of time and allowing the patient to make an informed decision. Even if the doctor exercises an ordinary and proper standard of care in performing a procedure, they could still be held liable if they did not disclose risks ahead of time and those risks came to fruition. As a public policy choice, courts have held that a patient should not be manipulated or coerced to undergo any procedure unless he or she is fully aware of the likely risks.
Finally, even when all risks are fully disclosed and medical errors are avoided, not every procedure is successful. A patient can have a poor outcome even when the doctor does everything right. This was evidently the case for Frances Hopkins, a 77-year-old retiree from Baltimore, Maryland. After a total left knee replacement on September 22, 2014, Frances received heavy narcotic painkillers. Unfortunately, this caused constipation which complicated existing diverticulitis.
Diverticulitis happens when small pockets form in the lining of the small intestine and become infected. For Frances, the narcotics she needed indirectly caused the diverticulitis to become worse and worse, until she was admitted back to the hospital in October for further treatment. A CT scan with oral contrast was ordered by the attending gastroenterologist. This is a CT scan in which a patient drinks a liquid that will show up clearly on the CT scan, allowing the digestive tract to be carefully mapped. The CT scan identified severe constipation and diverticulitis, which was then treated with antibiotics (to reduce infection in the diverticula) and medicated enemas.
Unfortunately, Frances’s condition did not improve. On October 12, 2014, she suffered a perforation in the colon which resulted in a break between the large intestine and the interior of the body wall. As a result, she had to have a portion of her colon removed and a permanent colostomy bag installed. Multiple corrective surgeries followed, causing Frances great pain and suffering as well as large medical costs.
Frances hired a medical malpractice attorney, who sued the attending physician and the gastroenterologist for medical malpractice. The medical malpractice attorney argued that the medicated enemas were not necessary and had caused the perforation. They demanded $1.2 million in damages for medical malpractice associated with post-operative care, resulting in peritonitis, colostomy, and intestinal perforation.
However, experts brought by the attorneys for the defense argued that the enemas were safe and were not the cause of the perforation. They said that the enemas were medically indicated but simply were not ultimately successful in stopping severe constipation and diverticulitis, and contended that the perforation was ultimately the result of inflammation brought on by the diverticulitis. The jury agreed, finding a result of no malpractice. Cohen & Cohen
