Major common bile duct injury and risk of litigation:
a surgeon’s perspective
Christophe R. Berney, M.B., M.D., Ph.D.*
University of New South Wales, Department of Surgery, Bankstown-Lidcombe Hospital, Bankstown, Australia
Abstract. Risk for a lawsuit for medical malpractice has unfortunately become part of physicians’ daily
professional activities, with a blowout in indemnity insurance premiums, especially in high-risk
medical specialties. Common bile duct injury following laparoscopic cholecystectomy is a well-
recognized and feared complication for surgeons because of its associated morbidity, and it also ranks
among the leading sources of medical malpractice claims against surgeons in the world. The purpose
of this article is to raise awareness within the medical community and in particular among specialist
surgeons on the important threat they could be facing in terms of litigation in the event of an adverse
surgical outcome following such a commonly performed procedure. There is a real need for open debate
on this concerning topic, as the fear of lawsuits and exorbitant malpractice premiums are pushing a
substantial number of medical professionals to practice defensive medicine, reflected by the avoidance
of performing certain procedures or treating high-risk patients perceived to have higher litigation rates,
or simply walking away from their current practices, creating a chronic shortage of specialized doctors
in certain surgical areas.
© 2011 Elsevier Inc. All rights reserved.
Bile duct injury;
Risk of litigation;
Laparoscopic cholecystectomy (LC), introduced in the
late 1980s, gained wide acceptance and rapidly became the
treatment of choice for symptomatic gallstone disease and
soon after for cholecystitis, mainly because of the signifi-
cant improvement in overall morbidity, shorter hospital
stays, and earlier return to work for patients. During the
initial phase of its development, a quasi-epidemic of com-
mon bile duct (CBD) injuries was reported1and conse-
quently rapidly brought to the attention of the surgical
community to act against it. Since then, with the refinement
of this technique, better teaching, and improved instrumen-
tation, the risk for iatrogenic CBD injury has progressively
reduced and plateaued. Unfortunately, it still remains higher
than for open cholecystectomy, with an estimated incidence
of .25% to .5% in the United States, where ?750,000 cases
of LC are performed each year.2Identical figures are pub-
lished around the world.
No one is immune from the risk for injuring the bile duct,
even experienced surgeons,3and as such, this will always
remain a significant inherent risk of this procedure. Some
have shown that the vast majority of errors leading to
laparoscopic CBD injury arise from visual-perceptual illu-
sions, not from errors of technical skill, knowledge, or
judgment.4Nevertheless, iatrogenic CBD injury still re-
mains the worst complication of LC, associated with sig-
nificant morbidity, reduced long-term survival,5and im-
paired quality of life,6and it ranks among the leading
sources of medical malpractice claims against surgeons in
the “developed” world, mainly in countries with a strong
Anglo-Saxon emphasis on individual rights.
By law, every practicing surgeon must hold professional
liability insurance to offset the risk and costs of lawsuits
based on medical malpractice, which can be exorbitant.
* Corresponding author. Tel.: 612-9722-8000; fax: 612-9793-8140.
E-mail address: firstname.lastname@example.org
Manuscript received May 29, 2011; revised manuscript June 17, 2011
0002-9610/$ - see front matter © 2011 Elsevier Inc. All rights reserved.
The American Journal of Surgery (2011) xx, xxx
Basically, 2 main medicolegal systems exist, both of
European origin and with very fundamental differences.
The European continental or “civil law” system is based on
Roman law and strongly influenced by the Code of Napo-
leon. Many European law codes that derive from this system
base their principles on compensation according to the dam-
age done and regardless of motive or intent. This is known
as statutory benefit under a “no-fault” system, or statutory
compensation law, which means that an injured patient is
entitled to statutory benefit if the injury was caused by the
procedure, irrespective of whether the surgeon was at fault
or not. These benefits may include hospital and medical
expenses, lost wages, or lump-sum compensation payments
for permanent impairment. The aim is to achieve equality of
compensation while reducing most forms of personal injury
litigation, as no civil liability is brought into court. In 1972,
New Zealand introduced the 1st universal no-fault public
liability insurance scheme for all accident victims.7
In contrast, the Anglo-Saxon legal system, also known as
“common law,” tends to be inherently more adversarial and
punitive. In case of adverse clinical outcome, the defendant
is considered at fault for medical negligence and therefore
liable for malpractice until proven otherwise. Most of the
time, these cases are taken to court, and if successful the
medical indemnity insurance, on the basis of the tort law of
negligence, is requested to reimburse the various costs in-
curred, usually ending up in large payouts, because there are
not any accepted limits to what the compensation should be.
This system has a very profound and quite disturbing neg-
ative impact on the relationships between doctors and pa-
tients, as it creates unrealistic expectations from them.
Doctors are at the service of the community, and they
have a duty to care for their patients, but this does not mean
that they can always guarantee a perfect result. Providers of
medical services are only human, so by definition, there
should be no obligation of result exerted upon them. The
perversion of this system is that it generates a mentality that
a medical complication must be compensated irrespective of
the risk taken by the specialist. At the same time, it is also
very costly and inefficient, because most of the money is
spent on considerable legal fees, court costs, and other
expenses rather than just compensation of the injured pa-
tient, if relevant. The result is a spiraling of claims and an
explosion of professional liability insurance premiums in
high-risk medical specialties, and this will remain the case
as long as plaintiffs’ lawyers continue to enjoy appallingly
high pecuniary benefits.
According to the American Medical Association, medi-
cal liability premiums increased by ?1,000% throughout
the country from 1976 to 2007. This represents today an
average yearly cost of about $84 billion to $151 billion in
defensive medicine for the health systems.8Although phy-
sicians are found not negligent in ?90% of cases that go to
trial, more than $110,000 is still spent on defending those
claims.8This fear of lawsuits and exorbitant malpractice
premiums is the reason why a large number of medical
professionals are practicing defensive medicine, reflected
by the avoidance of performing certain procedures or treat-
ing high-risk patients perceived to have higher litigation
rates,9or simply walking away from their current practices,
creating a chronic shortage of specialized doctors in certain
The blowout in medical indemnity premiums also hit the
Australian medical profession, with clinicians in a number
of fields obliged to carry unworkable premium burdens.
This led in April 2002 to the collapse of Australia’s biggest
medical indemnity insurer, United Medical Protection, but
was rapidly followed up by the implementation of new tort
law reform brought into force to alleviate the upward pres-
sure on insurance premiums and regulate the common-law
system.10This had a positive impact in terms of reduction of
medical indemnity claim numbers and also a small but
significant fall in medical indemnity premiums. Only time
will tell if this trend will be temporary or not.
Medical malpractice is defined as professional negli-
gence by act or omission in which the care provided by a
surgeon deviates from accepted standards of practice and
that may cause bodily injury or death to the patient, such as
leaving an instrument or gauze in a wound or operating on
the wrong limb. As stated by Lalwani et al,11“The doctor
cannot be sued for professional negligence, when statistics
show that accepted methods of treatment have been employed
on the patient and that the risk and injury which resulted are of
a kind that may occur even though reasonable care has been
taken.” Nevertheless, each year, many surgeons around the
world are still successfully sued for malpractice after CBD
injury, despite this not being the case.
By definition, being a surgeon inevitability implies ex-
periencing complications. When this happens, carrying the
responsibility for having caused harm to someone who gave
us his or her trust can be a very stressful and intensely
painful situation, not to mention the detrimental impact such
an adverse outcome could have on our private practices and
reputations. During this process, the fear of a lawsuit does
not help the surgeon either, who at the same time must deal
with the complication. Unfortunately, most literature relat-
ing to CBD injury does not talk about this side of the
problem, which is disappointing.
If the trend of medical liability premiums is to remain
that way or to continue increasing over the years, then
reimbursement for LC should then be readjusted to the
difficulty of the case, which carries a higher risk for injuring
the CBD, such as acute or chronic cholecystitis, morbid
obesity, or patients with previous upper abdominal surgery.
Furthermore, apart from professional responsibility, the
“risk taking” by a surgeon is enhanced by the fact that he or
she must accept working in a legal environment that has a
tendency to remove all sense of responsibility from patients.
This also has a price.
In Australia today, the Medicare benefits schedule payment
for LC with operative cholangiography is AUD$800.60. This
figure is slightly higher, but still quite low, at around
2The American Journal of Surgery, Vol xx, No x, Month 2011
AUD$1,000 if the patient is privately insured. As a result,
many Australian surgeons are increasing their fees to keep
a viable private practice and asking their patients to pay the
gap. The simple question that I am asking is, is this really a
fair and representative way to reward a specialist surgeon
for this service?
With an estimated risk for CBD injury during LC of
about .3%, even the gross revenue of 333 procedures would
barely cover the cost of a lawsuit in case of 1 successful
complaint against a surgeon, should he or she have to pay
the legal payout without assistance. Obviously, our profes-
sional liability insurance would have to cover these ex-
penses, but the point I try to make here is that in this
particular scenario, the snowball effect on our premiums
could become once again out of proportion, with ?45,000
and ?750,000 LC procedures performed each year in Aus-
tralia and the United States, respectively. When considering
the running costs of a private surgical practice, such a figure is
clearly inappropriate, not respectful of the work of the surgeon
The purpose of this article is to raise awareness within
the medical community and in particular among specialist
surgeons on the important threat they could be facing in
terms of litigation in the event of an adverse surgical out-
come after LC. Unfortunately, iatrogenic injury of the CBD
carries a very high chance of legal action for malpractice,
even though only a very small proportion of such injuries
arise from errors of technical skill, knowledge, or judgment.
There is a real need for open debate on this concerning topic
and in the meantime for reevaluation of the benefits sched-
ule fee system, which has become totally obsolete.
1. Shamiyeh A, Wayand W. Laparoscopic cholecystectomy: early and
late complications and their treatment. Langenbecks Arch Surg 2004;
2. Massareh NN, Flum DR. Role of intraoperative cholangiography in
avoiding bile duct injury. J Am Coll Surg 2007;4:656–64.
3. Archer SB, Brown DW, Smith CD, Branum GD, Hunter JG. Bile duct
injury during laparoscopic cholecystectomy: results of a national sur-
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4. Way LW, Stewart L, Gantert W, Liu K, Lee C, Whang K, Hunter J.
Causes and prevention of laparoscopic bile duct injuries: analysis of
252 cases from a human factors and cognitive psychology perspective.
Ann Surg 2003;237:460–9.
5. Flum DR, Cheadle A, Prela C, Dellinger EP, Chan L. Bile duct injury
during cholecystectomy and survival in Medicare beneficiaries. JAMA
6. Boerma D, Rauws EA, Keulemans YC, Bergman JJ, Obertop H,
Huibregtse K, Gouma DJ. Impaired quality of life 5 years after bile
duct injury during laparoscopic cholecystectomy: a prospective anal-
ysis. Ann Surg 2007;246:161–3.
7. Howell B, Kavanagh J, Marriott L. No-fault public liability insurance:
evidence from New Zealand. Agenda 2002;9:135–49.
8. American Medical Association. The case for medical liability reform.
Available at: http://www.ama-assn.org/ama1/pub/upload/mm/-1/case-
for-mlr.pdf. Accessed July 16, 2011.
9. Studdert DM, Mello MM, Sage WM, DesRoches CM, Pegh J,
Zapert K, Brennan TA. Defensive medicine among high-risk spe-
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3C.R. BerneyCommon bile duct injury and litigation