The physician expert witness must have had a current, valid, and unrestricted state license to practice medicine at the time of the alleged occurrence
The physician expert witness should have been a diplomate of a specialty board recognized by the American Board of Medical Specialties at the time of the alleged occurrence and should be qualified by experience or demonstrated competence in the subject of the case
The specialty of the physician expert witness should be appropriate to the subject matter in the case
The physician expert witness who provides testimony for a plaintiff or a defendant in a case involving a specific surgical procedure (or procedures) should have held, at the time of the alleged occurrence, privileges to perform those same or similar procedures in a hospital accredited by the Joint Commission or the American Osteopathic Association
The physician expert witness should be familiar with the standard of care provided at the time of the alleged occurrence and should have been actively involved in the clinical practice of the specialty or the subject matter of the case at the time of the alleged occurrence
The physician expert witness should be able to demonstrate evidence of continuing medical education relevant to the specialty or the subject matter of the case
The physician expert witness should be prepared to document the percentage of time that is involved in serving as an expert witness. In addition, the physician expert witness should be willing to disclose the amount of fees or compensation obtained for such activities and the total number of times he or she has testified for the plaintiff or defendant
Recommended guidelines for behavior of the physician acting as an expert witness
Physicians have an obligation to testify in court as expert witnesses when appropriate. Physician expert witnesses are expected to be impartial and should not adopt a position as an advocate or partisan in the legal proceedings
The physician expert witness should review all the relevant medical information in the case and testify to its content fairly, honestly, and in a balanced manner. In addition, the physician expert witness may be called upon to draw an inference or an opinion based on the facts of the case. In doing so, the physician expert witness should apply the same standards of fairness and honesty
The physician expert witness should be prepared to distinguish between actual negligence (substandard medical care that results in harm) and an unfortunate medical outcome (recognized complications occurring as a result of medical uncertainty)
The physician expert witness should review the standards of practice prevailing at the time and under the circumstances of the alleged occurrence
The physician expert witness should be prepared to state the basis of his or her testimony or opinion and whether it is based on personal experience, specific clinical references, evidence-based guidelines, or a generally accepted opinion in the specialty. The physician expert witness should be prepared to discuss important alternate methods and views
Compensation of the physician expert witness should be reasonable and commensurate with the time and effort given to preparing for deposition and court appearance. It is unethical for a physician expert witness to link compensation to the outcome of a case
The physician expert witness is ethically and legally obligated to tell the truth. Transcripts of depositions and courtroom testimony are public records and subject to independent peer reviews. Moreover, the physician expert witness should willingly provide transcripts and other documents pertaining to the expert testimony to independent peer review if requested by his or her professional organization. The physician expert witness should be aware that failure to provide truthful testimony exposes the physician expert witness to criminal prosecution for perjury, civil suits for negligence, and revocation or suspension of his or her professional license
Common Malpractice Claims
Key Concept: You should be aware of the more common malpractice claims as well as how (potentially) best to avoid them.
In 1993, Kenneth Kern reviewed the most common claims filed in the field of colorectal surgery over the prior two decades. He found that the majority of claims were filed within the categories of failure to timely diagnose disease (43 %), iatrogenic colon injury (24 %), iatrogenic medical complications during diagnosis or treatment (15 %), sphincter injury with fecal incontinence resulting from anorectal surgery or midline episiotomy (10 %), and lack of informed consent (8 %) . Since this study, there has been no update of this data, though the distribution of colorectal disease as well as the types of complications that are at risk of litigation are similar.
Other studies have looked at the risk of lawsuit after colon cancer is discovered 1–4 years after colonoscopies that ostensibly cleared the colon of cancer risk  and the risk of missing cancers on barium or Hypaque colon examinations . In 1993, Gerstenberger and Plumeri examined 610 endoscopy-associated and 486 gastroenterology-associated malpractice claim files of the Physicians Insurers Association of America data-sharing project. “Improper performance” was alleged in 54 % of claims and “diagnosis error” in 24 % of claims. Of the claims focusing on diagnostic error, 61 % pertained to missed malignancies, of which 69 % were colorectal. In contrast, 95 % of the claims focusing on improper performance claimed perforation or direct injury to the gastrointestinal tract .
Several authors have put forth recommendations on avoiding lawsuits. Amongst the most common recommendations are represented by David Beck : (1) good communication and interpersonal skills, (2) proper documentation, and (3) ensuring accurate informed consent. Good communication with patients has become more difficult in the present era, with time pressures to see more patients over a set period of time, with many procedures being performed in the outpatient setting, and with inpatient stays becoming shorter. Beck emphasizes the need for physicians to listen to patients, to remember and use the patient’s name, to use lay terminology, to take the time to answer all of the patient’s questions, and to make sure that his contact information is available.
Complete and accurate documentation is crucial in defending claims and may even serve as a deterrent to a potential claim, when a plaintiff’s attorney reviews a potential case and finds that the documentation is so complete that it would be difficult to convince a jury that what happened is anything other than what is documented. Charles F. Gay, Jr., JD has published a list of suggestions that can be helpful with regard to documentation—the list is shown in Table 39.3 .
Helpful hints at documenting properly and accurately
1. If you are the treating or primary physician, make a daily entry on the chart
2. Always sign, date, and time each entry
3. Chart at the earliest time
4. If a situation prevents you from charting until later, state why and that the record times are best estimates
5. Chart all consultations
6. Write legibly and spell correctly. Use accepted medical abbreviations
7. Never alter the medical records
8. Never black out or white out any entry on a chart. Should you make a mistake in charting, place a single line through the erroneous entry and label the entry “error in charting.” Follow the hospital policy on charting. An addendum is acceptable if placed in sequence with the date and time made
9. Chart professionally. Do not impugn or insult the patient. Do not impugn, insult, or criticize colleagues, co-workers, or support staff
10. Always designate the dose, site, route, and time of medication administration
11. Do not chart incident reports in your notes
12. Chart objectively rather than subjectively and avoid ambiguous terms
13. Document use of all restraints, safeguards, and patient positioning
14. Document all patient noncompliance
15. Document all patient education, discharge instructions, and patient responses
16. Document the patient’s status on transfer or discharge
17. Ensure the patient’s name is on each page of the medical chart
18. Do not chart in advance
Key Concept: Informed consent is a process that allows respect for a patient’s autonomy to be preserved and can be broken down into seven elements. Except in certain emergency settings, informed consent should be obtained from a patient every time a procedure is performed.
Most of you recognized that informed consent should be comprised of a detailed description of the procedure and accompanied by the procedure’s inherent risks, benefits, and alternatives. Yet, it should really go beyond that. Beauchamps and Childress have broken informed consent down into seven elements as shown in Table 39.4 .
Seven elements of informed consent
I. Threshold elements (preconditions)
1. Competence (to understand and decide)
2. Voluntariness (in deciding)
II. Transformation elements
3. Disclosure (of material information)
4. Recommendation (of a plan)
5. Understanding (of 3 and 4)
III. Consent elements
6. Decision (in favor of a plan)
7. Authorization (of the chosen plan)
The threshold elements describe the preconditions necessary for appropriate informed consent. The notion of competence, at its core, means the “ability to perform a task .” In one sense, in order to exercise autonomy at all, a person must be competent. The determination of whether a patient is competent rests on his cognitive abilities both to comprehend information and to consider the consequences of actions. The judging of competence in marginal cases is a complex task that is beyond the scope of this chapter. The other threshold element is voluntariness, that is, the condition in which decision-making can be considered free from outside coercive influence.
The transformation elements are a second preliminary requirement for informed consent. Disclosure of material information is a central component of the informed consent process and is often thought of as the major condition on which a good informed consent is based. Beauchamps and Childress have outlined the core information that should be disclosed in an informed consent, including the fifth element, recommendation :
Those facts or descriptions that patients or subjects usually consider material in deciding whether to refute or consent to the proposed intervention or research
Information the professional believes to be material
The professional’s recommendation
The purpose of seeking consent
The nature and limits of consent as act of authorization
The last transformation element is a demonstrated understanding of the disclosure and the recommendation. Next, the consent elements comprise the action portion of the informed consent process. A decision must be made by the patient, with a caveat that the decision is voluntary, as specified in the preconditions. Finally, for the informed consent process to be complete, the patient must signify, usually in the form of a document, his or her authorization that the procedure may be carried out.
Key Concept: The practice of surgery involves unique ethical challenges. In part, this is secondary to the fact that surgeons take on a different level of responsibility than most physicians when they encounter patients.
The field of ethics in surgery encompasses a wide range of topics and ideals—too large to concisely state in this chapter. Yet, it is important to recognize not only the role that ethics play daily in surgery but how surgery can be particularly challenging. Often, the surgeon may meet the patient only once prior to heading off to the operating room for a large and very invasive procedure. The doctor-patient relationship has to be established in this short first meeting, as it often is the start to a longer-term relationship. After the operative procedure, the surgeon and team take full responsibility for the procedure itself, the postoperative care, and, most often, the long-term follow-up of the patient—including management of any complications that might arise. The established relationship that results from this interaction is intense since it comes about very quickly and often under adverse circumstances.
Another challenge is the fact that surgeons cannot easily “redo” their work, as many in other professions can. This luxury of time is afforded to attorneys who can appeal their cases, movie directors who can reshoot a scene, and accountants who can amend a return that has already been filed. Indeed, most non-surgeon physicians function on a different timescale than surgeons and can more easily change a course of action if the treatment selected is not working. For surgeons who work under the pressure of time, it is imperative that you do what you think is best, using your judgment, medical knowledge and expertise, and previous experience. You ought to be as scrupulous as possible in assuring that bioethical and legal guidelines are followed since this is what good patient care consists in.
Treating Yourself, a Family Member, or Friend
Key Concept: Understand the complex factors at play when embarking on this situation and ask yourself honestly, “Am I the right person for the job?” (more than just technically or knowledgeably).
We have previously considered the ethical problems that arise when a surgical problem arises in a surgeon’s beloved friend or family member . The problem with such situations is knowing whether or not it is possible to assume the same level of objectivity as when you operate on a stranger. The postoperative management of such a patient may become difficult to pull off if tough choices must be made. The first consideration that can be made is one of beneficence. It is possible that the surgeon in question is the best possible person to perform the operation—such a situation may arise for a trauma surgeon who sees his brother in the trauma bay after a stabbing to the chest. Since all of the other trauma surgeons are at home, beneficence dictates that the surgeon should operate, given that he is the only one who can perform a lifesaving operation. A second consideration is one of nonmaleficence. The conflict of interest that arises in situations such as this may cause one interest (such as the prolongation of a life) to outweigh another more clinically important interest (such as the best course of action for the patient). Furthermore, respect for autonomy may come into play as patients may be hesitant to question their physician-relative that may lead them to consent to more risky procedures than they would otherwise undertake. It is difficult to guarantee autonomous consent, free from coercion in such an instance.
LaPuma and Priest have addressed this topic in the literature with seven questions a physician who is considering treating a relative ought to consider prior to making a decision . First, the physician should consider whether he is trained to meet his relative’s needs. Second, he should wonder whether his closeness to the relative would prevent him from probing his relative’s intimate history and coping with bad news, if need be. Third, the physician should wonder whether he is objective enough to prevent his giving, “too much, too little, or inappropriate care.” Fourth, he should consider whether his involvement might exacerbate intra-familial conflicts. Fifth, the physician ought to wonder whether his relative might better comply with treatment prescribed by an unrelated physician. Sixth, he should examine whether he would allow a physician to whom he may refer his relative to actually care for him or her. Finally, the physician should be readily accountable to both his peers and the public for the care he gives his relative.
The treating of family members is a problem that was known historically. In 1794, Thomas Percival wrote, in reference to the topic, “The natural anxiety and solicitude which he experiences at the sickness of a wife, child, or anyone who by the ties of consanguinity is rendered particularly dear to him, tend to obscure his judgment and produce timidity and irresolution in his practice .” Little has changed with reference to this view, with the current American Medical Association position being, “physicians generally should not treat themselves or members of their immediate families … [except] in emergency settings or isolated settings where there is no qualified physician available .”