Discussion
Colon perforations are inherent in the performance of colonoscopy, which may raise a medicolegal problem. As far as we know, this study is the first one to analyze characteristics of lawsuit cases of colon perforation caused by colonoscopy using the Court Records. The most important finding of the current study is that lawsuit cases of colon perforation during colonoscopy are characterized by 1) colon perforation detected 24 hours later after colonoscopy, 2) decision in favor of the plaintiffs in most cases, and, in particular, the worse the patient’s condition, the higher the compensation, and 3) not all cases recognized as malpractice despite of an obvious colon perforation. In general, perforation is detected within a few hours after colonoscopy, but perforation symptoms may develop after several days, especially in the case of a therapeutic procedure15-17. In addition, when the size of the perforation is small, symptoms may not appear for several days18,19. In this study, there were nine cases of delayed perforation, and symptoms of suspected perforation appeared up to 57 hours after colonoscopy. Since perforation can occur at any time in up to seven days after colonoscopy20-22, delayed perforation may not be noticed by a close monitoring, such as a short hospitalization. Therefore, thorough patient education for the possible symptoms of colon perforation after procedure may be the best way to detect a missed perforation. The median compensation was 9,335.47 USD, this is about 130 times the cost of a single colonoscopy in Korean primary clinic (with a one-time charge of about 72.66 USD as of 2020). The more severely damaged the colon, the higher the compensation. However, it is impossible to judge the severity of malpractice simply by the amount of compensation, because the compensation is calculated by taking into consideration the patient’s age and income levels, mental damage and limitation of liability. Compensation covers medical expenses, damages due to loss of earning capacity, and consolation money for mental damage. We found that the types of loss of earning capacity varied regardless of which surgery the patient underwent or the patient outcome, except when the patient died. In Korea, ’Disability Evaluation of McBride’ are used when determining the loss of earning capacity23, but this standard, created in the 1960s, does not adequately reflect the current situation and is limited in that the doctor’s subjective opinion or judgment may have an influence. Consolation money for mental damage is also judged entirely in accordance with the discretion of the court24. In this study, it can be seen that the level of consolation money varies (See the supplementary table). In Korea, in the case of traffic accidents, the court set the standard for consolation money25, but there is no standard in medical accidents. Therefore, for the court’s consistent and fair judgment on medical accidents, it is necessary to improve the criteria for consolation money and loss of earning capacity and to regard the nature of medical practices such as the possibility of force majeure medical accidents. Perforation is an obvious medical accident. In this study, 91% case was decided in favor of the plaintiff. However the courts did not judge every case as a doctor’s performance error. In general, it is known that doctors need to meet a minimum standard of colonoscopy experience to ensure the quality of colonoscopies26,27. However, even the most skilled doctors may not avoid colon perforation28, and some people are skeptical of requiring for minimal standards of colonoscopy experience29,30. It was found that judges considered how doctors responded after recognizing the perforation or whether there was any cause on the part of the patient, rather than the doctor’s competency. In addition, sometimes, courts regarded perforation as an unavoidable complication of colonoscopy. Therefore, doctors can reduce the liability for damages in a lawsuit as much as possible by responding appropriately and immediately after recognizing perforation. However, since colonoscopy is often performed in primary clinic3,20, it is not easy to immediately treat perforation in their clinic. Therefore, it is necessary for medical institutions to establish an emergency transfer system. Since informed consent is the best way to ensure patient autonomy and protect doctors from dispute, it is important to both parties31. Based on the trust between the doctor and the patient, the doctor must fully explain the possibility of perforation to the patient and let the patient self-determine whether to undergo colonoscopy despite such risks32. Sufficient time is required for informed consent. Colonoscopy is rarely performed urgently, so it is not impossible to devote sufficient time to informed consent before testing. However, it is never easy to establish a doctor-patient relationship, since colonoscopy is mainly performed in a short time at an outpatient clinic3,20. Doctors and patients may neglect the informed consent because of people’s perception that the colonoscopy is safe33. However, patients tend to sue when trust building with doctor fails34,35. In addition, lack of informed consent is the main reason for the medical litigation36. In the process of informed consent, the doctor should explain this to the patients, not their family members. In this study, there was a case in which a doctor, who explained the possibility of perforation to a patient’s family members, was judged as violating doctor-patient confidentiality. Obtaining consent from the patient’s family members is clearly a violation of the patient’s autonomy37 and does not conform to the purpose of the informed consent. In this context, we suggest that doctors explain and obtain consent for polypectomy and biopsy together when explaining colonoscopy to all patients. If doctors did not get a written consent before colonoscopy, a polyp, which is unexpectedly encountered during colonoscopy cannot be removed because it is virtually impossible to obtain immediate consent from the patient being examined. This study has some limitations. First of all, it was difficult to perform rich and in-depth analysis because detailed clinical information was not provided in the lawsuit and there were many missing data. In addition, the total number of cases is small and therefore the generalizability of the results is limited. In fact, when a medical accident occurs, not all patients sue. Since medical disputes are often settled through negotiation between patients and doctors, it is hard to say that this study, using lawsuit cases, represents the status of colon perforation accidents during colonoscopy. Nevertheless, it is significant that this study has been analyzed from a medical and legal point of view, with a clear focus on the subject of colon perforation caused by colonoscopy.