Medicolegal Issues

Michael S. Baggish

Michael J. Trentalange

Mac A. Greco

Medical malpractice is an issue that affects the lives of doctors and the practice of medicine worldwide. The economics of this issue influence not only doctors’ and lawyers’ pocketbooks but also those of hospitals, clinics, manufacturers, and insurance companies. The subject of medical liability has directly influenced the day-to-day interactions between doctors and patients. Questions regarding medical malpractice are asked on applications for health maintenance organization (HMO) panel admission and for medical licensure. The filing of any lawsuit is a matter of public record, as is the jury verdict reached in the case. Moreover, the National Practitioner Data Bank maintains detailed information on physicians for whom insurance carriers have paid claims in settlement of medical malpractice actions. Regardless of the merits of the defense, anyone who has been sued can attest to the anxiety such an episode produces both professionally and personally.

The purpose of this chapter is to describe why lawsuits happen, what will transpire, and how to deal with them. Anecdotal evidence regarding the incidence of legal claims appears to be greatly exaggerated. The Harvard Medical Practice Study (see Brennan et al., 1991) found that only a small percentage of those patients who suffered injury as a result of medical mismanagement actually brought legal actions. Nevertheless, any surgical case in which a complication occurs or a poor result is obtained may result in the patient’s pursuit of legal advice and, ultimately, the filing of a lawsuit against the surgeon.

Terminology

The term defendant refers to the person who allegedly committed the act or action for which the lawsuit is instituted; invariably it refers to the doctor, nurses, and hospital and/or clinic. The plaintiff is the party who is aggrieved and who is bringing the lawsuit. This is usually the patient and her husband and/or family. In the case where the patient has died, the plaintiff may be the patient’s estate. The complaint is a document listing the allegations that the plaintiff claims constitute medical negligence. The plaintiff must prove that these allegations are true to prevail. In civil cases, the plaintiff must convince the jury by the greater weight of the preponderance of the evidence that the defendant was negligent. (Cases tried solely by a judge are not discussed here because, in the authors’ experience, medical negligence claims are almost uniformly tried by juries.) This standard of proof is lower than in criminal cases (beyond a reasonable doubt).

Discovery refers to pretrial questioning to accumulate facts from medical records, witnesses, and expert testimony. Attorneys representing both plaintiff and defendant are present at depositions. The party requesting the deposition pays for the expenses of the deposition, and his or her legal representative takes the lead in asking the witness questions. Depositions are conducted in the presence of a court reporter, and the witness is sworn to tell the truth and is expected to produce any documents that will subsequently be used in the trial. The purpose of the deposition is to ascertain facts about the case and is used principally for the benefit of the person or persons requesting it. A transcript of the questions asked and the answers given is produced and serves as important evidence in the trial. Interrogatories are a series of written questions that either the plaintiff, defendant, or witness must respond to factually and accurately.

A risk manager is either a lawyer or lay person hired by the hospital to review all potential and real malpractice cases. The risk manager consults with hospital or insurance attorneys relative to the risk of a complicated case eventuating in a lawsuit. He or she will attempt to reduce the hospital’s liability. If the physician is insured by the hospital, the risk manager will also work on behalf of the doctor.

Settlement refers to the termination of the lawsuit prior to the end of the trial and usually involves bestowing money to the plaintiff prior to a judge’s or jury’s verdict. Dismissal is defined as the withdrawal of the lawsuit by the plaintiff without any financial settlement for various reasons but usually because of lack of evidence of wrongdoing by the doctor. An expert witness is a doctor or other named expert who, based on his or her experience and knowledge, is hired by the attorney representing the plaintiff or defendant to give opinions supporting the position of the respective party. A directed verdict is the procedural term for a judge’s ruling in favor of either party before presenting the matter to the jury. It is used when the facts are clearly in favor of one party and against the other party and prevents the jury from deciding a question in the absence of evidence to support its contention. An accepted standard of medical or surgical care
could be defined as the reasonably expected outcome when performed by a similarly trained gynecologist acting in a prudent manner.

Why Lawsuits Happen

The seeds of a medical malpractice case typically are sown before the actual operation or treatment. The communications between the doctor, the patient, and her relations are very important in this regard. The doctor should endeavor to be factual during these interactions and should always be professional in his or her dealings with the patient. Good, clear office and hospital records are essential. Timed and dated notations coupled with thorough data prove that the doctor is a good historian and witness. No one can recall events accurately when several months or years have passed. The medical record serves as a prospective diary of events as they happened and is the best defense against hearsay evidence. Hurried examinations and helter-skelter history taking reflect poorly on the doctor’s credibility.

Close follow-up, careful review of past history, and attention to previous diagnoses, treatments, and surgery are equally important. No doctor should prescribe drugs with which he or she is unfamiliar with regard to dosage, side effects, and interactions. Discussions about surgical procedures being contemplated must be documented, including the reasons why the surgical procedure is recommended. Consultations with other physicians should not be spared to please an HMO or to save money. Inaccurate diagnoses should never be entered on a patient’s behalf to fool an insurance company into paying more money for a procedure or to justify the performance of a surgical procedure.

In an actual case study, a physician bending to the desire of a patient to have her vagina “tightened up” wrote a diagnosis of symptomatic rectocele onto the medical record and performed a posterior repair. Subsequently, 2 years later, the woman sued the doctor because of dyspareunia, alleging that an unnecessary rectocele repair created vaginal scarring.

Although it seems obvious, a gynecologist should never perform a pelvic or breast examination in the absence of a female nurse or female assistant.

The informed consent should be clearly documented in the medical record (Box 32.1). The explanation of the operation cannot be given by a nurse. Permits witnessed by nurses are meaningless. The best consent will cover the procedure, preferably with a drawing or picture(s), and detail the common complications that can occur. Similarly, the doctor should tell the patient about the chances of success she can expect as a result of having the operation. A handwritten consent or note carries more weight than a printed, generic consent form. Preferably another person will be present to witness the consent information prior to surgery. The physician should include information about his/her personal experience (good and bad outcome data) with a given procedure.

BOX 32.1 Informed Consent

10/13/97 12 Noon Today I met with Mr. and Mrs. Smith. We discussed the endometrial ablation. Mrs. Smith’s bleeding has not been able to be controlled with Provera or oral contraceptives (3-month trial). The diagnostic hysteroscopy and sampling revealed no myomas. Pathology showed proliferative endometrium. I discussed and illustrated the technique of operative hysteroscopy showing the Smiths how the electrode will make contact and destroy the endometrium. I discussed the risks of the procedure including specifically media-related and electrosurgical complications. We also discussed the possibility of perforation and the possibility of laparotomy, as well as neighboring organ injury. We discussed repairative procedures should a perforation or transsection happen, e.g., colostomy, ureteral implantation, fistula repair, adhesion formation. The patient and her husband are also aware of the anesthesia risk. We also discussed remote risks. The Smiths understand the above details and wish to proceed with surgery. I plan to administer GnRH agonist and schedule surgery approximately 4 weeks from the date of the injection.

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