David E. Beck, Steven D. Wexner, Tracy L. Hull, Patricia L. Roberts, Theodore J. Saclarides, Anthony J. Senagore, Michael J. Stamos and Scott R. Steele (eds.)The ASCRS Manual of Colon and Rectal Surgery2nd ed. 201410.1007/978-1-4614-8450-9_53
© Springer Science+Business Media New York 2014
53. Medical Legal Considerations
(1)
Cleveland Clinic Law Department, Cleveland Clinic Foundation, 3050 Science Park Drive, Beachwood, OH 44122, USA
Abstract
The increasing frequency and crushing severity of malpractice claims and lawsuits, data bank reporting, Web-based consumer claims data, privacy requirements, increasing clinical demands, greater government regulation and enforcement activity, and increasing malpractice premiums have caused many physicians to leave private practice, retire early, or move to more lawsuit-friendly jurisdictions.
Introduction
The increasing frequency and crushing severity of malpractice claims and lawsuits, data bank reporting, Web-based consumer claims data, privacy requirements, increasing clinical demands, greater government regulation and enforcement activity, and increasing malpractice premiums have caused many physicians to leave private practice, retire early, or move to more lawsuit-friendly jurisdictions.
Medical Malpractice
Elements of Malpractice
The requisite elements that must be proved by a plaintiff in a medical malpractice case are determined by the laws of the various states.
Generally speaking, medical malpractice is established when:
It is shown by a preponderance of the evidence that a patient’s injury was caused by the act of a physician or surgeon that would not have been committed by a physician or surgeon of ordinary skill, care, and diligence under like or similar conditions or circumstances.
Or by the omission of an act that a physician or surgeon of ordinary skill, care, and diligence would have performed.
And that the patient’s injury was the direct and proximate result of such act (or omission).
Standard of care is what a “physician or surgeon of ordinary skill, care, and diligence would or would not have done under like or similar conditions or circumstances.”
For there to be a plaintiffs’ verdict the jury must believe that:
1.
There was a departure from the standard of care, and
2.
The departure from the standard of care was the direct and proximate cause of the patient’s injury.
For the defense to prevail, the jury must believe that either (1) or (2) above was not proved by a preponderance of the evidence or that neither was proved.
Recurring Malpractice Themes
For colon and rectal surgery, the nature and frequency of allegations were as follows in recent years:
43 % Failure to timely diagnose disease, principally cancer and appendicitis
24 % Iatrogenic colon injury
15 % Iatrogenic medical complications during diagnosis or treatment
10 % Sphincter injury with fecal incontinence from anorectal surgery or midline episiotomy
8 % Lack of informed consent, usually regarding the extent of procedures or endoscopy
More recently, patients who present with fully developed cancers within 4 years of colonoscopies that apparently cleared the colon of neoplasia have emerged.
Risk management suggestions relevant to colon cancer screening include:
Use of authoritative screening guidelines
Documenting informed consent and refusals
Assessing family histories
Recommending that family members of at-risk patients be contacted
Repeating sigmoidoscopies and colonoscopies when the preparation is inadequate
Documenting cecal intubation and careful withdrawal techniques
Lawsuit Stress
Many if not most physicians who are sued experience stress and other normal emotions when their professional care and judgments are criticized in a public lawsuit.
The simple reality is that the profession which you have chosen frequently lends itself to the frustrations and anxiety of litigation.
Attorneys representing physicians usually advise their clients not to discuss the case with others for fear of losing the protections available through the attorney–client privilege.
Many insurance companies and medical institutions provide resources for defendant physicians that enable them to discuss their lawsuit and their feelings of uncertainty and isolation with counselors or colleagues in a protected fashion.
Conversations with psychotherapists should normally be privileged and not admissible in the courtroom as evidence in the case.
Informed Consent
Few cases are prosecuted exclusively on the issue of informed consent, and juries do not customarily award damages solely for a lack of informed consent.
Nearly every malpractice lawsuit, however, contains a supplementary count that informed consent was not obtained.
Properly obtaining and documenting informed consent can be critical to the defense of the entire lawsuit.
Obtaining of Informed Consent
Obtaining informed consent is primarily a physician obligation.
Informed consent is a communication process in which the physician should disclose and discuss the following information with the patient:
The patient’s diagnosis, if knownRelated posts:
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