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Can a recognized complication of a surgery be negligence?  What about ureter injuries during hysterectomy?

A: Usually not. However, there is always an exception to the rule. For example, ureteral injuries during hysterectomy are recognized risks. In layman’s terms, when surgeons remove a woman’s uterus, injury to the tubes that carry urine out of the body can happen no matter how careful and talented the surgeon is.

That said, in a recent medical malpractice case, medical experts testified that a ureteral injury was medical negligence. The circumstances were quite unique. The injury involved a new cauterizing medical device. Surgeons use cauterizing devices to close incisions by burning the tissue together in a process analogous to welding.

The danger inherent with cauterizing devices is that unintended tissues can be burned which may result in injury or complications. In this case, the surgeon used a new version of a device which the surgeon thought had a zero burn radius (which the manufacturer’s website calls “thermal spread radius”).

Only after the surgeon had burned the patient’s ureter did the surgeon research the device’s burn radius, which was actually from 2 – 5 mm. If the surgeon had known this, the surgeon would not have used the device so close to the ureter, and the patient’s injury would have been avoided. In addition, the doctor could have used a saline barrier, a physical barrier, a stent, or even a lighted stent (they even come in different colors) to show where the ureter was and prevent damage. However, the doctor chose not to.

In very limited and unique circumstances, recognized complications can be medical negligence.

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