On the Cutting Edge of Surgical Negligence: Will LESS be More?

Traditional surgery involves the exposure of abdominal and pelvic organs through a single large incision. This approach, known as open laparotomy, affords a wide-open view of abdominal contents. Open laparotomy is still performed in certain situations and was the only surgical approach available until the first minimally invasive gallbladder surgery (laparoscopic cholecystectomy) was performed in 1985. During laparoscopic surgery, the surgeon inserts a laparoscope — a long slender videoscope designed to provide lighting and high-resolution imaging inside the abdomen and pelvis. The laparoscope is introduced through a port, which is a small surgical opening into the abdomen. Additional surgical instruments are inserted through adjacent ports such that the patient typically has three or four small surgical incisions. This gives rise to the term “minimally invasive surgery” because it contrasts starkly with the large incision of traditional open laparotomy.

Following the first laparoscopic cholecystectomy, surgeons rapidly developed minimally invasive techniques for nearly every surgical condition. Common examples include laparoscopic appendectomy, laparoscopic hysterectomy, and laparoscopic nephrectomy. In addition to abdominal and pelvic approaches, videoscopes can be inserted into almost any area of the body including joints (arthroscopic surgery), chest (video-assisted thoracoscopic surgery, or “VATS”), and uterus (hysteroscopic surgery).

With nearly all abdominal, pelvic, thoracic, and gynecologic surgeries amenable to videoscopic approaches, the next major evolution was robotic-assisted minimally invasive surgery. Robotic-assisted surgery, often called “da Vinci surgery” because it is performed on a proprietary da Vinci Surgical System, describes the use of a robot to facilitate the surgeon’s actions. By combining exquisitely controlled robotic movement with high resolution 3-D imaging, surgeons perform videoscopic surgery with extreme precision. Nonetheless, such surgeries are still performed with multiple incisions since several ports are required.

In the last few years, minimally invasive surgery took another seismic leap with the introduction of LaparoEndoscopic Single-Site surgery. By utilizing a novel port that allows the introduction of multiple instruments through a single incision less than 2 inches long, surgeons now perform unimaginably complex surgery through a single entry point. Some of these procedures are even being performed in conjunction with robotic assistance giving rise to the entirely new field of robotic single-site (“R-LESS”) procedures. The current state-of-the-art for single-site surgery includes:

  • Urologic: Prostatectomy, cystectomy, nephrectomy, and nephroureterectomy
  • Gynecologic: Hysterectomy, oophorectomy, and salpingo-oophorectomy
  • Abdominal: Appendectomy, cholecystectomy, LAP band, colectomy, herniorrhaphy (hernia surgery), gastrectomy

The early experience with LESS surgery suggests that it carries the same risks as other surgical approaches, though it is less invasive and should facilitate faster recovery times. Since the technique is still in its infancy, surgeons are studying its risks and benefits while exploring new applications that evolve rapidly.

From a negligence perspective, single-site surgery poses some unique challenges. With all surgical instruments (trocars) inserted through a single site, the surgeon’s hand movements are restricted with multiple surgical instruments in a tightly crowded field. Single-site surgery also means that the surgeon loses one of the greatest advantages of multi-site surgery: the ability to triangulate surgical structures while deploying multiple instruments from several directions. The surgeon is also operating at a greater distance from the surgical target since single-site surgery nearly always occurs at the umbilicus regardless of the location of the surgical target. These technical constraints mean that there is a steep learning curve for surgeons performing single-site techniques, yet economic and marketing pressure to perform “single-site surgery” will no doubt lead to rapid widespread adoption. This elevates negligence risk especially when viewed in light of a sparse number of training programs, a relative paucity of prospective surgical outcome studies, and a lack of widely-adopted standards of care. These factors are likely to heighten litigation risk during the dawn of single-site surgery and will undoubtedly lead to lawsuits across several areas including informed consent, negligent credentialing, false advertising, and medical negligence. Such are the risks inherent to all novel procedures, and as single-site procedures become mainstream, litigators will need to remain on the cutting edge in order to advance and defend against single-site negligence claims.

Do you need an expert witness for your LESS surgical case? Contact Elite today.

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