Redress Risk Management (post until May 31/19)
Personal Injury

Even minimally invasive surgeries can go tragically wrong: Derfel

People need to be aware that any surgery, even the most routine, comes with risks of injury or death, says Toronto personal injury lawyer David Derfel.

“Patients shouldn't underestimate the significance of what they're going through,” says Derfel, founder and principal of Derfel Injury Lawyers.

“Patients need to appreciate that any type of surgical procedure has risks associated with it.”

A review by the Canadian Medical Protective Association (CMPA) of 423 medical-legal cases involving laparoscopic surgery — a “minimally invasive” keyhole technique — found injuries involving lacerated or damaged bowels, blood vessels, reproductive organs or nerves, delays in recognizing and treating injuries, and surgery on the wrong body part, or patient, the National Post reports.

In all, 46 people died. Experts were critical of the care provided in 74 per cent of the cases. Forty per cent of patients suffered severe harm or died, the newspaper reports.

There is a growing tendency to view surgery like laparoscopy and cosmetic procedures — often same-day operations done in a clinic — as routine and completely without risk, Derfel tells AdvocateDaily.com.

“What this article highlights is that there are hazards — even with improved techniques which reduce the risks and, to some extent, scarring and the chances of infection,” he says. “As soon as there is some sort of insertion into the skin, there’s an opening and a wound has been formed. With that there’s risk.”

Derfel says the article also calls attention to the fact that some surgeons may not be up to date with newer procedures such as laparoscopic surgery.

The report describes the case of a woman left with debilitating pain after an older surgeon accidentally punctured her aorta during a laparoscopic gall bladder operation.

Dr. Gordon Wallace, an official with CMPA, which provides doctors with legal representation, told the National Post that laparoscopic surgery complication rates are falling as surgeons gain experience and that young surgeons have much more real experience with the techniques.

“Laparoscopy is a wonderful thing,” Derfel says.

It has brought huge savings to the medical system because people don’t have to stay in hospital as long; plus it leaves minimal or no scarring, he adds.

“But hospitals needs to make sure doctors know what they’re doing and have experience with newer surgical techniques.”

The review highlights how important it is for a patient to inquire about the skill level of the surgeon about to perform any procedure and make sure the facility where it’s being done can handle complications, Derfel says. For OHIP-funded, non-cosmetic procedures, that can be difficult in Canada, where the system generally dictates how, where and by whom the procedure is done. Despite that, patients should persevere, he adds.

According to the report, some of the injuries that occurred during surgery weren’t detected until the patient developed symptoms in the post-op period and even then, surgeons sometimes failed to consider the possibility of surgical damage.

This underscores the importance of patients immediately reporting any adverse symptoms, Derfel says.

“The best advocate for someone’s health care is going to be themselves,” he adds.

“You should do your best to explain everything that’s bothering you so the doctor can ascertain exactly what’s going on; whether the procedure has been a success; and if there’s any followup that needs to be done or other treatment required,” he says.

In cases of suspected physician negligence, patients should bear in mind that there is a two-year limitation period for launching a lawsuit, says Derfel.

It begins as soon as the patient is aware or suspects that something went wrong with the procedure, he adds. So it’s important for patients to make a note of the date they first suspected something was amiss, because failing to launch their case within the limitation period could prove fatal to their chances of success, he says.

"It's heartbreaking when a patient is unable to pursue a claim for medical negligence because they failed to commence their action in time," says Derfel.

“Hospitals and doctors and nurses will use whatever defences are available to them. Especially dealing with the CMPA and hospitals, they very vigorously defend. You’re already fighting an uphill battle," he says.

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