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Civil Litigation

Rare decision won't open legal floodgates: Shekter

Just because things go wrong during surgery doesn’t mean you can sue a doctor for negligence, says Toronto litigator Richard Shekter

Not even if you wake up during surgery and feel the surgeons cutting into your abdomen and moving your internal organs around will you necessarily have grounds to sue — except in circumstances like the recent case of a Toronto woman where a doctor fails to meet the expected standard of care. 

In what is believed to be the first award for “accidental surgical awareness,” a judge ruled that the woman woke up because of an anesthetist’s negligence, reports the National Post

The woman was successful because she was able to prove that a doctor was directly at fault for her waking up – a situation that almost never happens, Shekter tells AdvocateDaily.com

The patient was diagnosed with endometrial cancer and in December 2008 she underwent surgery to remove her uterus, ovaries and fallopian tubes to prevent the disease from spreading, according to the newspaper story.

In mid-operation, she awoke to feel the surgeons inside her abdomen, heard them talking, and experienced burning pain. Frozen by paralytic drugs, she was unable to move or speak.

“Someone was inside me, ripping, ripping me apart,” the woman testified. “It was excruciating. It was burning and burning and burning.”

The newspaper says waking during surgery happens roughly once in every 1,000 surgeries, but no one has successfully sued — until now.

Shekter says the case is an anomaly and won’t open the legal floodgates. A physician isn’t held liable unless it’s for negligence. 

“Many people believe that if they don’t get the medical result they wanted, they can sue the doctor for negligence. That’s just not true,” he says. 

“A bad outcome doesn’t necessarily mean negligence,” says Shekter. “It doesn’t mean you can sue. There has to be a failure to meet the standard of care expected of a reasonably, comparably qualified physician in the same circumstances as the defendant doctor.”

Shekter also says specialists are held to a higher standard than the average family physician.

“Anyone who holds themselves out as having a particular specialty isn’t held to the same standard as a reasonably qualified general doctor, but they will be held to the standard of a reasonably qualified specialist in that field,” he says.

In the Toronto woman’s case, she sued two doctors — the “fellow” or advanced trainee, who administered the anesthesia and the staff anesthetist who didn’t stay for the surgery. Only the fellow was found to be negligent.

According to the judge’s decision, the patient was administered a combination of drugs, including nitrous oxide and propofol. At some point during the operation, the woman’s bowel became distended and the surgeon brought that to the attention of the anesthetist, who reduced the concentration of nitrous oxide being administered.

The court found the defendant failed to properly compensate for the lowering of the nitrous oxide and that’s why he was deemed to be negligent.

Shekter says the fellow would have been held to the same standard as a fully qualified physician.

“You can’t have one standard for students and another for full-blown specialists because that would put patients at risk,” he says.

“You don’t go to a hospital and expect to get sub-standard care because the doctor is still learning. That doesn’t work.”

While the parties agreed on how much compensation the woman will receive, that amount has not been disclosed. The court heard the plaintiff needed several months of psychological and psychiatric counselling.

Shekter says the amount awarded would be commensurate with her pain and suffering and any past and future care needs.

“The more affected a plaintiff is, the higher the award,” he says.

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