Common Bile Duct Injury and the Anatomical Anomaly Defense
A good question to ask in response when this defense is raised is when did the surgeon first realize that there were such anomalies. The response almost certainly should be as soon as the abdominal cavity was visualized – if there were no pre-operative suspicions in the first place. Once the surgeon is aware that there are anomalies, it is best – to say the least – not to guess. The surgeon should immediately covert to an open procedure where the surgeon has a better view of the site and can actually palpate or touch the structures.
The fact that there are anomalies should not be a surprise to any seasoned surgeon. The issue is whether that surgeon has the experience and skill necessary when confronted by such anomalies to continue laparoscopically – or even better – and be on safe-side and convert to an open procedure immediately. A reasonable surgeon should not continue to proceed laparoscopically when faced with a difficult surgical site given the increased risk of harm to the patient unless the surgeon is 100 percent sure the biliary structures are being properly identified.
The failure to properly identify the common bile duct during a laparoscopic procedure when there are anatomical anomalies is a deviation from reasonable surgical practice. The proper action of a reasonably prudent and skilled surgeon should be to covert the operation to an open procedure, rather than risk seriously injuring the patient. Therefore, the anatomical anomaly is really a non-defense, but an admission of liability.