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.