It is one of the most common surgical procedures in the U.S., often performed in an outpatient or with only a day or two of hospitalization. Most people with this procedure can resume normal activities within about a week. However, a health care provider’s error during the procedure can result in severe and even life-altering complications.
What Is Laparoscopic Cholecystectomy?
Laparoscopic cholecystectomy is a minimally invasive surgical procedure to remove the gallbladder. The gallbladder is a small, sac-like organ on the right side of the abdomen beneath the liver. The gallbladder’s primary function is to store a greenish fluid known as bile produced by the liver and used to help the body break down and absorb food in the small intestine. Bile moves from the liver to the gallbladder and onto the small intestine through a series of small tubes known as bile ducts.
In some individuals, the gallbladder produces hard masses known as gallstones.
Gallstones are common digestive disorders that people seek medical treatment for and can produce:
- Sudden, intense pain in the abdomen
- Back pain between the shoulder blades or in the right shoulder
- Nausea or vomiting
Laparoscopic cholecystectomy is a procedure to remove the gallbladder through a small incision in the abdomen. An additional cut is made to insert a scope with a camera and a light attached. The surgeon uses the image of the gallbladder produced by the scope to guide their movement as they remove the organ. While this procedure is touted as less invasive and easier to recover from, surgeons can make damaging errors that constitute malpractice.
Cutting the Common Bile Duct: When a Standard Surgery Goes Wrong
The surgeon cutting, burning, or pinching the common bile duct is the most common error during laparoscopic cholecystectomy. The common bile duct is the tube that carries bile from the liver to the small intestine. This results either in bile leaking into the abdomen or preventing the bile duct from working correctly. Often, the doctor will realize that the bile duct has been compromised while the patient is still in surgery and can take steps to stop bile leakage into the abdomen. This can involve reconstructing the bile duct from a piece of the small intestine to bypass the damaged area.
Suppose the surgeon did not notice the error during surgery. It will often come to their attention when the patient fails to recover from the surgery as well as expected. It may also come to their attention if the patient exhibits post-surgical symptoms, including fever, chills, nausea and vomiting, abdominal pain and swelling, general discomfort, and jaundice which is yellowing of the skin that is caused by a blockage of the common bile duct.
Bile Duct Injuries Can Result in Serious Long-Term Consequences
A French study of the impacts of bile duct injuries on patients who have experienced this complication revealed severe impacts of the injury on the quality of life for patients.
The findings included:
- About a quarter of the patients in the study reported a significant loss of quality of life five years after the complication. Bile duct injuries are believed to occur in up to 14 percent of patients with gallbladders removed laparoscopically.
- Most of the patients who participated in the study were eventually healed enough from the surgical injury to return to work. However, they returned around three months later than those who had undergone an uncomplicated laparoscopic cholecystectomy operation.
Among the dire complications of a bile duct injury resulting from gallbladder removal is irreversible liver damage that necessitates a hepatectomy. This surgical procedure removes part or all of the liver. If only a portion of the liver is removed, the organ will eventually grow to its former size. However, those who incur damage that requires all of the liver to be removed will need a liver transplant.
Additionally, patients who suffer from a bile leak can acquire sepsis. This life-threatening infection has entered the bloodstream and spread throughout the body.
Is a Bile Duct Injury During Gallbladder Removal a Form of Medical Malpractice?
Medical malpractice is an error made by a health care provider during treatment that results in injury to the patient. While there are potential complications in laparoscopic cholecystectomies, as with any surgery, cutting the common bile duct occurs due to an error by the doctor.
This error can be a result of inadequate training to perform the procedure, failure to adequately monitor the patient during or after the procedure to detect signs and symptoms of a potential bile duct injury, failing to diagnose correctly, failing to promptly treat a bile duct injury occurring during surgery, and rushing through the procedure.
In addition to bile duct injuries, surgical errors made by the medical team can also include accidental perforation of nearby organs, which can damage those organs and sepsis.
Seeking Compensation After Suffering a Bile Duct Injury Due to Malpractice
Those who have suffered a bile duct injury due to a medical error during a laparoscopic procedure to remove the gallbladder can seek compensation for their injury’s expenses and quality-of-life impacts through a medical malpractice claim. Medical malpractice is a complex area of the law, and this type of claim is often difficult to prove. Claimants are not required to have an attorney. Still, an experienced attorney’s experience is crucial for the claim’s success.
Affording a Medical Malpractice Lawyer
How is someone supposed to afford to pay for a lawyer when dealing with unplanned expenses and impacts on their physical and psychological health due to a medical error? Luckily, the contingent fee billing method used by personal injury attorneys including those that work on medical malpractice cases allows access to assistance for anyone who has sustained an injury resulting from someone else’s negligence.
When you and a medical malpractice attorney begin working together on your claim, you will be asked to sign a contingent fee agreement. This agreement between you and the attorney allows you to withhold payment for their services until there is a positive resolution to your claim, either through a negotiated settlement or a court award. At the resolution of your claim, your attorney will receive a percentage of the award as payment. Because of the contingent fee, you will not be required to come up with an upfront investment or struggle to keep current with bills from your attorney so that work will continue.
An Investigation of the Error and Subsequent Treatment
One of the first things your attorney will do when working on your claim is to investigate the circumstances that led to the error to determine who was liable for the injury and the associated medical malpractice insurance policy that covers that liability. Surgeons generally work as independent contractors with privileges at hospitals rather than as hospital employees.
Because of this, if a surgeon makes an error during a procedure that results in a patient injury, the surgeon is generally the at-fault party, so you may file your claim against the surgeon’s medical malpractice policy. However, suppose the error was made by hospital staff, such as a failure of the nurse on duty to properly monitor the patient after surgery to detect signs of complications.
In that case, the liability likely falls on the hospital itself, which is liable for the negligence of its staff, and the claim is made against the hospital’s medical malpractice policy.
Valuing Your Claim
As your condition improves and stabilizes, your attorney will establish a value for your claim. The value is not based solely on the expense of additional medical treatment to repair the error to the bile duct and subsequent wage loss from being too injured to work.
Instead, determining the value requires considering:
- The severity of the injury.
- The extent of repair necessary to fix the injury. An individual who suffered a bile duct injury that was discovered and promptly repaired during surgery likely faces less psychological impacts from the error than someone whose bile duct injury was not immediately discovered, resulting in a decline in health and even necessitating a liver transplant.
- The presence of permanent disabilities resulting from the injury will impair your ability to earn an income.
- The level of negligence that resulted in the injury.
Demanding Compensation from the At-Fault Surgeon’s Insurance
Once a value is established for your claim, your attorney will send a demand to the at-fault party’s insurance. The insurance provider can either pay the claim, deny it, or offer to settle the claim out of court for less than its established value.
Negotiating a Settlement
Initial settlement offers for malpractice claims are almost always far below the claim’s value. When a low settlement offer is made, it is a good sign that the insurance provider is at least willing to accept their insured’s liability. Your attorney can negotiate on your behalf to get the insurance provider to increase their offer to a level that will fairly compensate you for your injury.
Settlement offers can be made anytime from when the insurance provider receives the claim, when the lawsuit is filed, or even after trial on the matter has begun, as long as the court has not yet rendered a decision.
Filing a Medical Malpractice Claim
If the medical malpractice insurance provider fails to compensate your claim, you can sue and ask a judge or jury to determine liability and compensation.
Many states including Illinois require that medical malpractice claimants obtain an affidavit of merit and include that document with the filing. An affidavit of merit requires your attorney to consult with a medical professional with experience in the area of medicine relevant to your claim. This professional states in the affidavit that they have reviewed the details of your claim and found a reasonable and worthy cause for filing the action.
Another essential requirement for medical malpractice lawsuits is the statute of limitations. This refers to a state law determining the time a party has to file a lawsuit in court after a medical error resulting in injury. Failure to file the lawsuit within this time can result in losing the ability to use the court process to seek compensation for your injury.
Without the consequence of a lawsuit, if they do not compensate the claim, most insurance providers will not make a settlement offer, meaning they will pay no compensation.
Most medical malpractice claims are resolved through settlement rather than litigation. However, having the option to have a court decide on the matter is a significant one. Also important is ensuring that the attorney you hire is as comfortable and confident in fighting for your right to compensation for your injury through litigation as they are negotiating a settlement.
The attorney should be able to provide you with information about their trial experience easily and whether their legal strategy focuses solely on settlements or includes any method necessary to assist you in obtaining the compensation you need.
Receiving Your Compensation
After your case, the proceeds of your settlement or award will be received by your attorney. After collecting their payment and helping you satisfy any medical liens against the award, your lawyer will release the remainder of the funds to you.
Have you suffered a bile duct injury due to an error during gallbladder removal? If so, contact a personal injury attorney for a free case evaluation.