Was this medical malpractice, and should we have had to pay for the surgery?

Asked over 4 years ago - Otsego, MI

My husband has had Crohn's Disease for 11 years now. A few years ago, we found a new gastroenterologist due to questionable treatment from his current one (he was on 160mg of prednisone and was swelling terribly). We found a new specialist, who ordered a small capsule study done (a small pill that takes thousands of pictures as it travels through the intestines), the pill should come out as natural waste in a few days. He said he viewed the pictures and everything looked fine. Over 1 1/2 yrs later (after numerous bouts of terrible pain and suffering), we sought out a 2nd opinion and found the camera had lodged in the inflamed/diseased area and never passed through to take the pictures. Did he read the test?How could he have if it never made it? Required immediate surgery and thousands of $

Attorney answers (3)

  1. James E. Girards

    Pro

    Contributor Level 14

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    Answered . Your question raises a number of issues that you may want to consider. Retention of the endoscopy capsule occurs in less than 2% of cases. First, go to my website www.girardslaw.com. I have placed an article there for you and will leave it for a few days for you to download. Look for the link "Retention of Capsule." Then, you might obtain a complete copy of your husband's records from the capsule study. That will tell you what photos were obtained and when. Next, you will need to know what steps were made to confirm the camera had passed out of his GI tract - "if you put it in you must confirm it came out." It doesn't sound like that occurred. Then, you should get a copy of any abdominal x-rays taken during that 1.5 year period at any facility to see if it showed up there. Last, be sure to contact a local attorney immediately because there is a time deadline to filing suit. Good luck to you and your family.

  2. Joseph A Blaszkow

    Contributor Level 15

    Answered . I don't know enough about this procedure but you raise some interesting questions. I would see an experienced trial attorney and have your case evaluated. Good luck.

    The author of this post is licensed to practice law in the District of Columbia, Maryland, and Virginia. This post is intended as general information only, and is not provided as legal advice in connection with any specific case, and does not create an attorney-client relationship.

  3. Augustine Smythe Weekley Jr.

    Contributor Level 3

    Answered . Your husbands disease, the events that you describe, and the issues associated with the questions that you ask are very complicated. I know that you and your husband know some of what I will write, so I am also pointing this discussion to others who may not have the experience and knowledge that you have -- not that I would wish that on anyone.
    As you have doubtless experienced, Chrohn's Disease has no clear cause and no one treatment that is universally effective. Patients with this condition are also subject to irregular and recurring bouts of pain and other signs and symptoms of "flairups." Therefore, one of the first things that one would need to determine is whether or not there can be established a causal relationship between the retained capsule and the symptoms that occured over the period of 1 1/2 years. Unless there is documentation of increased doctor visits and other proof of an increased number of flareups during that 1 1/2 year period, the causal relationship may be difficult to prove.
    Retention of the capsule, in itself, is not malpractice, as this may occur for a number of reasons. Some liability might attach to the fact that the doctor did not confirm its passage; however, you are now back to the causaton issue: You must prove that the retained capsule was the cause of the problems during the 1 1/2 year period -- But for the retaned capsule, the problems would not have occured and the surgery to remove it would not have been necessary.
    That brings up the next question. After 1 1/2 years, why was "immediate surgery" necessary? Of coourse, I do not know the type of surgery performed, but was any attempt made to flush out the capsule? Generally, but not always, such removal is a relatively brief procedure and often can be performed through a laperascope without an open incision.
    Were the pictures read? Was the camera in the area of interest and did it display the condiition in a useful manner? If not, would they have made a differnece in treatment or prognosis?
    All of these issues must then be related to damages. Pain and suffering is one factor for which you and he can be compensated, but you are again faced with the issue of causation. The cost of the hospitalization and removal of the capsule, and whether or not it was covered by insurance is another matter that would enter into the whole picuture, but I would expect that the dollar loss to the family for this treatment alone would no be sufficient to warrant the acceptance of tthis case on a contingency basis.
    Finally, as mentioned above, this is a complicated matter that will require the collection of your husbands medical records from all treater and hospitals, and many hours of study by an attorney and medical experts. All of this is espense for a plaintiff's attorney, and unless (s)he can see a very significant liklihood of a substantial return, I am doubtful that you will find an attorney willing to take the gamble.
    As most any malpractice attorney will tell you, they evaluate many more cases (10 to 1?) than they accept. This is unfortunate because it leaves uncompensated many people on whom malpractice has been committed. However, this is the nature of our system. The potential financial return and the liklihood of success are foremost in the mind of the plaintiff's attorney who is working on a contingency basis.
    I wish you and your husband well, and hope that his health improves.
    (I do not know where you are located, but even if you were in our jurisdiction, this firm would not be able to take this case.)

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