Perspectives in clinical gastroenterology and hepatology
Avoiding and Defending Malpractice Suits for Postcolonoscopy Cancer: Advice From an Expert Witness

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Informed Consent

The key risks to include in the informed consent discussion for colonoscopy are perforation and “missed cancer” or “missed lesion.” Other elements such as postpolypectomy bleeding and medication reaction typically also are discussed, and consideration should be given to including aspiration pneumonia and splenic injury.2 A doctor who knows their adenoma detection rate (ADR) might present it to the patient during the process, although my own practice is to provide it only when the patient asks.

The Plaintiff's Burden

The plaintiff must prove that the performance of the colonoscopy was below the standard of care and that this resulted in harm to the patient. The issue of harm is referred to as causation. The level of harm the plaintiff must establish can vary according to state laws and regulations. For example, in one state the plaintiff might be required to establish that the harm was such that the patient was more likely than not (51% probability) to die or another outcome as a result of the negligence.

The Future of Documentation

As noted earlier, colonoscopies are poorly documented examinations, certainly relative to radiographic examinations. As systematic video recording becomes more feasible, it may be more difficult to resist systematic use of video recording.37 My personal opinion is that video recordings of high-quality examinations would be a tremendous advantage to the defense of malpractice allegations of missed cancers, and essentially would eliminate cases in which a high-quality examination had been

Conclusions

Malpractice cases alleging negligent performance of colonoscopy that resulted in failure to prevent cancer are difficult for plaintiffs to win, primarily because of extensive knowledge about detection rates for colonoscopy when the procedure is performed under optimal circumstances. Attention to appropriate documentation of several aspects of the procedure and participation in a quality program create an aura of a well-trained, careful colonoscopist.

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References (37)

Cited by (26)

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    Recording withdrawal time is essential, since if the adenoma detection rate is low, a short withdrawal time is certain to mean ineffective technique. Withdrawal time has also become an important parameter in medical-legal actions alleging negligent examination prior to development of interval cancer [29]. To characterize “basic withdrawal technique” as “basic” suggests that effective technique is easy and can be taken for granted among experienced colonoscopists.

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Conflicts of interest The author discloses no conflicts.

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