Ureteric damage – not negligent

Clinical History

A 41-year-old woman with a history of menorrhagia and low back pain was referred privately to a consultant gynaecologist. During a preliminary D&C and laparoscopy, the consultant noted that the uterus was bulky and there were multiple pelvic adhesions. The consultant performed a total abdominal hysterectomy with conservation of the ovaries. This proved to be technically difficult because of increased vascularity and troublesome bleeding. The patient's immediate postoperative recovery, however, was uneventful.

Eighteen days after the surgery, the patient returned complaining of discharge and possible urine leakage from the vagina, which was associated with fever. She was admitted for urological investigation and a left uretero-vaginal fistula was diagnosed. An intravenous pyelogram showed that the left ureter was obstructed at the level of its distal third, this was also confirmed by cystoscopy. Re-implantation of the ureter with a Boari flap was performed a week later with good results. 

Negligence alleged

Some two years later proceedings were brought against the consultant gynaecologist and the health board responsible for the hospital where the surgery had taken place. In the Statement of Claim, which was not served for a further two years, it was alleged that the ureteric damage had occurred because the surgery had not been performed with all due skill and care. As a result, the patient claimed that she had gone through a very painful series of investigations and surgery, and that she had suffered residual discomfort and a predisposition to infections and other renal problems for some time thereafter.

Expert opinion

Medical experts instructed on behalf of the member commented that ureteric damage associated with hysterectomy was a well-recognised complication of this procedure. Indeed, they pointed out that the incidence of this complication has remained unchanged since the early part of this century, despite standard operative techniques designed to minimise the risk of injury. In this particular operation the surgery had been complicated by excessive bleeding and multiple adhesions, which made reflection of the bladder difficult. Because of the increased vascularity it was also difficult to secure haemostasis, particularly in the area of the left ureter. The pelvic anatomy was therefore distorted and obscured by haemorrhage. The experts agreed that to cause ureteric damage in such circumstances did not imply any lack of skill and care on the surgeon's part.

The patient was examined by an independent urologist who found no residual symptoms. He also commented on the likely cause of the fistula formation. Initially, the gynaecologist involved had thought that the ureter had become caught up in a ligature applied for haemostasis. It was the urologist's view, however, that, given the relatively long time lag between the primary surgery and the presentation of the fistula, the most likely explanation was ischaemic damage and that this was unavoidable. 

The trial

 The case came to trial some four years later and lasted six days. Following normal legal practice in Ireland, it was only at this point that the patient's expert's views became known in detail. He observed that it was his invariable practice and teaching, when performing a hysterectomy, to identify the ureter specifically either by palpation, or in certain circumstances by surgical dissection. In his view, if such proper care was exercised, the ureter should not be damaged, to do so was therefore a '...major cardinal error...'. When asked if the ureter could still be damaged even if the operation was done competently, he agreed that it could, and quoted an incidence of about one in two hundred cases.

The judgement

The judgement was given a month later (over seven years after the original operation), when the patient's claim was dismissed. In support of his decision, the Judge found, as fact, that the consultant's technique (which did not involve ureteric palpation) was perfectly acceptable. The Judge found that the ureteric damage was caused by ischaemia secondary to occlusion of the blood supply by either a clamp or a ligature. He also held that this represented no failure by the surgeon and that the patient's claim could not succeed.

The MDU's total costs in pursuing this case to its successful conclusion were just under IR£37,5OO. Unfortunately, none of this money was recovered as, unusually in such circumstances, the Judge refused to make the normal order for the patient to be made responsible for the consultant's costs.

Comment

Expert evidence in this case differed about whether, or not, it is necessary to palpate the ureter during hysterectomy. Both the consultant and his expert disagreed strongly with the patient's expert and, in the event, the Judge agreed that the consultant's technique was '...perfectly acceptable...'. The Judge was particularly interested in the comment of the patient's expert that ureteric damage could occur in about one in two hundred operations without negligence.

Damage to the urinary tract is a common cause of gynaecological claims. This judgement indicates that the courts do not perceive ureteric damage, ipso facto, to be an indication of negligence on the surgeon's behalf.
 

This guidance was correct at publication 01/01/2002. It is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.

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