Injury to nearby organs, vessels and nerves

One version has an official name. The federal Agency for Healthcare Research and Quality tracks accidental punctures or lacerations followed by a related procedure (opens in a new tab) in adults having abdominal or pelvic surgery, and its specification says nothing about whether an injury was preventable or anyone’s fault.

The National Quality Forum’s guidance on serious reportable events leaves known complications out of its wrong-site surgery event, and one of its examples is injury to and repair of an adjacent organ during abdominal surgery (opens in a new tab).

The Forum counts an event as a known complication only if it is a known risk of the procedure and appropriate measures were taken to reduce that risk, it was identified promptly, and it was managed and treated in a timely manner (opens in a new tab). That is a reporting definition and is not a legal test.

Federal rules for hospitals that take Medicare require surgical services to be well organized and provided in accordance with acceptable standards of practice (opens in a new tab), without defining those standards.

For gallbladder removal, a 2020 guideline from five surgical societies made most of its recommendations on preventing bile duct injury conditional, because the evidence was of low certainty (opens in a new tab). Its two strong recommendations were imaging the bile ducts during the operation when the anatomy is uncertain or an injury is suspected, and referring a patient with a confirmed or suspected injury to an experienced surgeon or specialist team (opens in a new tab).

The Society of American Gastrointestinal and Endoscopic Surgeons publishes six suggested strategies (opens in a new tab) for minimizing bile duct injury, such as getting help from another surgeon when conditions are difficult, and says they do not replace surgical judgment in the individual patient.

These are the regulators’ and the profession’s own documents. What careful practice required in a particular operating room is for a qualified surgeon to explain.

Among 1,570,361 Medicare patients who had the gallbladder removed between 1992 and 1999, 7,911 (0.5%) had a common bile duct injury (opens in a new tab), counted as a repair of the duct within a year.

In California hospital billing data for 2007 to 2011, the ureter was injured in 1,753 of 223,872 patients having a hysterectomy (0.78%) (opens in a new tab).

Both are rates of injury. Neither is a rate of error, because the studies did not ask whether anyone was at fault. A recognized complication is not by itself negligence. In a case over a nerve cut during thyroid surgery, the Illinois Supreme Court held that a patient does not make out a case merely by presenting another physician’s testimony that he would have acted differently (opens in a new tab).

Studies of malpractice claims count claims. In the American College of Surgeons’ review of 460 claims against general surgeons closed in 2003 or 2004, organ injuries were among the most frequent complications (opens in a new tab), and reviewers found the care satisfactory in 36% of cases. Those are shares of claims, never of patients, and say nothing about how often an organ is injured.

Illinois has a doctrine, res ipsa loquitur, designed for the situation where there is no other evidence of negligence apart from the injury (opens in a new tab). The Illinois Supreme Court says the patient must prove an injury in an occurrence that ordinarily does not happen in the absence of negligence (opens in a new tab), caused by something within the defendant’s control. A judge decides first whether the doctrine applies (opens in a new tab).

In its 2022 surgery decision the court held that, because the nerve injury there was outside the common knowledge of laypeople, expert testimony was required to determine whether such an injury would ordinarily occur absent negligence (opens in a new tab). In an earlier surgery case it found enough for a jury where the evidence was more than a mere unusual occurrence (opens in a new tab).

Even then the doctrine only gets a case to a jury. The jury is free to accept or reject the inference (opens in a new tab). The 2022 decision did not decide whether anyone was negligent. It sent the case back to the trial court. Our page on Illinois malpractice law covers the deadlines, the reviewing health professional’s report and who can be held responsible.

Illinois hospital rules require an operative report describing techniques and findings, written or dictated immediately following surgery (opens in a new tab), and an operating room record that shows the presence or absence of complications in surgery (opens in a new tab).

A report that mentions no complication does not settle the matter. In an analysis of 252 bile duct injuries, many operative reports described the operation as routine (opens in a new tab). The authors also report that in most cases the surgeon did not recognize a problem.

You can ask the hospital for these records, and our Illinois law page explains how to request them. It helps to write down the date of the operation, the dates of any later procedures, and what you were told and by whom.