Ercp

[Sakima]

My friend(female 49 yo) had a ERCP procedure Oct 2010.  The doctor who placed a stent accidently inserted it too far past an abnormal pancreatic duct stricture that she had.  He spent 4 hours trying to retrieve it and failed.  After the procedure CT scan showed free air in abdomen and surgeons were worried she had a hole in her intestine from the procedure. The Gastroenterologist told me that he asked the team of surgeons who wanted to open her to use a substance called gastrographen  to check to see if there are any perforations.  The surgeon did not do that.  The Gastroenterologist  asked that if they open her to please remove the stent from the pancreas. That was not done either.  The surgeons opened her but said the hole was microscopic and could not find it.  They closed her back up and she stayed in the hospital for 11 days due to ensuing pancreatitis from procedure(first 3 days of that was in CICU for highblood pressure, arrythmia and acute pancreatitis).  She had to go back to the hospital 4 more times between Oct and Dec with bouts of severe pancreatitis(was sent home too early); One time I even argued with an senior resident not to send her home because she been NPO for 4 days and had not eaten yet and they didn’t care they sent her home anyway. Dec 2010 they tried to remove the stent again but to no avail.  Is this grounds for a lawsuit, a retained stent that’s causing her so much pain due to pancreatitis?  This year she sought a different doctor in a different city who specialized in endoscopy but he was unable to remove the stent as well.  He is saying he wants to try one more time and then if he could not retrieve the stent she will need a an open abdominal surgery to remove it from the pancreas.  We are wondering if the original doctor who did the procedure the first time and placed the stent too far into the duct to get it out was negligent?  If all this pain and trouble she has sustained and the unneccessary surgeries she has had and will have, plus high chance of chronic pancreatitis grounds for a lawsuit? My second question is what is the time limit  if she does have a case?  Is it too late for her?  Can you give recommendations of someone in Northern CA who can take her case or do you know how we can find someone?  Thank you

ANSWER: The CA Statute of Limitations for medical malpractice cases is 1 year so she would have a few monthsto go.  There are other rules and exceptions but that is the basic time period. Google California Statute of Limitations Medical Malpractice for other exceptions and limitations.  As to whether the stent placement, although clearly injuriou, was due to negligence, I don't know nor does any other attorney.  Only a gastroenterologist can opine on that question. That is why the first step a lawyer takes in a med mal case, and as required by law, is to find a qualified expert to review the case and give an opinion on the subject.  Even when a procedure is done according to the STANDARD OF CARE, bad results can occur.  In other words, just because there is a less than desired result doesn't mean there was malpractice. Procedures always have risks and no matter how competent the doctor may be, he/she cannot remove all of those risks.

Bottom line is this:  If the problem can be dealt with, even if open surgery is required, and she returns to normal function or at least no worse than she was before the procedure, and even if there was malpractice, it won't work, won't be a viable med mal case. Why? Because any med mal case costs the lawyers many thousands out of his pocket, hundreds of hours of work, and he doesn't get paid anything unless he wins. The defendants will have their own expert witnesses and the best lawyers money can buy so unless the negligence is very eggegrious, very obvious, and the damages very very high(menaing severe long term injury), it just ain't worth it.

---------- FOLLOW-UP ----------

Thank you for your timely answer.  I guess the main concern is chronic pancreatitis.  She only had a couple episodes of acute pancreatitis before this all started.  What if she ends up with what her family doctor is worried about? Chronic pancreatitis.  Will that be enough to get a lawyer interested in her case or is it just not enough? What can be done to that Senior Resident who disregarded her request to eat to see how she could handle regular diet since she was NPO for four days, instead she was discharged. Two days later she was readmitted for ongoing pancreatitis and duodenitis, infection on incision site in a different hospital for 10 more days. Is that negligence?  She went home several times  from that one particular hospital early and the insurance company only pays after the 7th day. So she is left with several medical bills for early discharges instead of just one bill for 7 days stay.  I hope that make sense.

[Eoforwic]

Here is the bottom line again: whether the medical care was sub-par, below the standard or care, or just plain negligent, no medical malpractice case is possible(economically possible that is)unless the negligence is very clear, the damages couldn't be from other causes, and the damages are very very big.   Big damages are a permanent or long term disability, severe pain, death, loss of a body part, etc. In your friend's case, she obviously already had pancreatitis. As I understand it, one of the risks of the ERCP is pancreatitis, sometimes chronic. The procedure probably exaccerbated the pre-existing pancreatitis but the doctor surely considered the risks and the benefits, no doubt discussed it with the patient, and they decided to go ahead. So you ask "what can be done"?  Not much. Didn't get the diet she wanted, incision infection, uncovered medical bills, etc.  No, this isn't evidence of negligence. Perfect outcomes can never be guaranteed in medical procedures and medical providers do not have a legal duty to provide such outcomes. They only have a duty to provide services "within the standard of care". The standard is quite low so only very eggregious negligence would violate it and again, unless the damages are severe and from no other source, could a malpractice case get off the ground.