What are the underlying risk factors for surgical lawsuits?
This chapter provides a specific “toolkit” aimed at reducing the risk of surgical litigation
Despite an increased use of checklists and surgical time-outs, surgeons continue to be sued at higher rates than other specialties. In this chapter, you will learn about 5 specific areas of risk and begin to understand the major reasons surgeons are sued—and learn strategies for prevention. We’ll examine ways of improving patient care by assessing the 5 areas in surgery that can result in litigation: (1) Was the surgery indicated?, (2) informed consent, (3) preoperative evaluation of the patient, (4) intraoperative issues, and (5) postoperative complications. You’ll also receive practical advice on communication, recognizing common sources of errors, and improving systems.
Before we delve into the specifics surrounding litigation and surgery, it’s important to understand the climate surrounding litigation. First, we’ll look at the odds of being sued. Then we’ll do a high-level overview of the types of suits surgeons are involved with, the associated costs, and a review of literature.
As a physician in the United States, your risk of being sued at some point in your career is about 65%. For surgeons, this risk is even higher: Orthopedic and neurosurgeons brush the ceiling with a 99% risk of being sued at some point during their careers.1 Many believe this high level of litigation is contributing to a malpractice crisis in the United States, which has been attributed to making care more expensive and less available.
Rates for medical malpractice insurance, also referred to as professional liability insurance, vary greatly from state to state. In 2014, the Medical Liability Monitor stated that general surgery premiums ranged from annual rates of approximately $11,000 in Minnesota and Nebraska to nearly $190,000 in Dade County, Florida (we imagine an extra $179,000 in overhead would give anyone pause!).2 The variations in cost are related to the presence or absence of “malpractice caps” (more about this topic follows) and the availability of state-funded supplemental funds, as well as liberal jury awards, high administrative costs, and legal fees.
Medical malpractice lawsuits are typically filed under tort law, the area of law that covers most civil lawsuits. Tort law is intended to redress a wrong done to a person, usually through the award of monetary damages. To be awarded damages in a medical malpractice suit, the plaintiff must prove the care received was negligent to a reasonable degree of medical certainty (greater than 50%). This includes proving that:
There was a doctor-patient relationship and the physician had a duty to provide care,
The physician was negligent and delivered medical care below the standard of care,
The patient suffered an injury that was caused by the negligence claimed, and
Injuries or damages occurred.
Jury trials typically revolve around the issue of standard of care. When a medical malpractice case is brought before a jury, the standard of care may be assessed by dueling experts who offer conflicting opinions about the care in question.
Although your risk of being named in a malpractice claim approaches 65% over the course of your career, there is good news: There is a very small chance that you will end up in court in a lengthy and embarrassing jury trial. Over the course of any given year, only a few of the 6,000+ physicians insured by COPIC in Colorado go to trial and most end with verdicts in favor of the physician. Many cases are dismissed and some are settled with the physician’s consent. Both sides in any claim have a strong incentive to see that the case does not go to trial. Costs for both sides are high ($200,000–$300,000 in complex cases); stress and risk of a loss are disincentives for the physician.
No. In fact, litigation results from only 1 in 50 negligent medical injuries. For injuries that lead to litigation, only 1 out of 6 is found to have been the result of substandard care.3 This is a key point in our discussion. Committing errors and getting sued are often not related.
The fear of being sued leads to practicing “defensive” medicine, which has been associated with increasing the cost of health care. A Pennsylvania study of high-risk specialties found that 93% of physicians reported that they practiced defensive medicine at some point during their career. In general, imaging is the most frequent tool used in the practice of defensive medicine. These specialists indicated 43% of x-rays, computed tomography (CT) scans, and magnetic resonance imaging (MRI) were ordered for defensive reasons.4
Costs are difficult to ascertain, as one cannot separate the fraction of unnecessary care from other factors such as clinical judgment to ensure patients get the best care. This raises several important questions as it relates to the cost of health care.
TIP: Questions Regarding Defensive Medicine
✓ How frequently does the fear of being sued cause physicians to add studies, procedures, referrals, and consultations that may not be indicated?
✓ How does one determine when these are truly indicated as opposed to being solely “defensive” in nature?
✓ How do we balance these facts with protecting our patients from errors, missed diagnoses, and harm?
The pressure to practice defensive medicine may be more prevalent in some specialties. Emergency department (ED) physicians often have no prior relationship with the patient: They have a single opportunity to see what might be an evolving illness, and the stakes are high if they miss a serious problem. Unfortunately, there are more questions than answers.
TIP: Emergency Department Questions
✓ Was the head CT ordered in the ED done to avoid litigation?
✓ Was the order made because it reflected the practice habits of the associated group or was it based on national guidelines?
✓ What if the decision was made in a gray area—where the test was not clearly indicated or contraindicated?
Other specialties are impacted as well. Fear of litigation might drive an OB/GYN to choose to perform more cesarean deliveries to reduce risk. Neurosurgeons care for patients with significant illnesses and high morbidity and mortality.
TIP: Does Expensive MRI Affect Outcome?
✓ Does the expensive MRI and consideration for surgery impact the patient’s ultimate outcome?
Clinical decision making is often art as well as science. As the number of tests ordered for defensive purposes increases, the tests themselves can become the expectation for how other physicians should practice.
In the 2010 study from Harvard titled “National Costs of the Medical Liability System,” researchers examined the overall problem of medical liability and the costs and factors arising from it. The study estimated that the overall cost of the present liability system is 2.4% of total U.S. healthcare spending—a staggering $55.6 billion. Yet even these researchers admit that the weakest parts of their calculations were in the area of defensive medicine.5
An important aspect of medical liability is the toll it takes on our physician workforce. Few issues in medicine cause as much angst among physicians as the fear of being sued. In fact, the concern over medical malpractice litigation is one of the leading causes of career dissatisfaction among physicians.6 At COPIC, we’ve observed physicians experience stress, a loss of work-life balance, substance abuse issues, feelings of depression, and the desire to change professions because of an experience with litigation.
Most lawsuits do not involve medical errors, but errors can be a reason a patient files a lawsuit. Errors themselves are powerful triggers for a panoply of emotional responses in physicians.
An American College of Surgeons survey revealed that major medical errors reported by surgeons are strongly related to a surgeon’s degree of burnout and his or her mental quality of life. Of the 7905 participating surgeons, 700 reported a concern that they made a major medical error in the last 3 months. Of those reporting an error, 70% reported the error was due to themselves as an individual rather than a systems error. Those reporting an error in the last 3 months were more likely to exhibit symptoms of burnout and depression.7
When a surgeon is undergoing a lawsuit, it’s a high-risk time in practice as well: Because of the associated distractions, the potential for committing errors in practice may be higher than normal. Surgeons may also experience a malpractice stress response. At COPIC, we have observed physicians who do not share that they were being sued with their spouses, friends, or partners, which can lead to feelings of isolation. Any underlying psychological problems are likely to be exacerbated, and new problems such as poor sleeping, increased substance use, intrusive thoughts, and obsessive worrying may occur. No study may ever truly capture the human toll that our present medical liability system inflicts on the practicing physician.
Despite the importance of effective communication in the world of surgery, most of the literature in the area of communication and lawsuits has focused on primary care physicians and their interactions with patients. There have been relatively few studies describing communication between surgeons and patients. This gap leads to a lack of specialty-specific understanding of best practices in communication and leads to applying information from primary care when it may not be appropriate for the surgeon-patient interaction.
Dr. Wendy Levinson is considered among the world’s foremost researchers on physician-patient communication. In her landmark 1997 study,8 she recorded hundreds of conversations between a group of physicians and their patients. Half of the doctors had never been sued, and the other half had been sued at least twice. Half the physicians were primary care and half were surgeons. Levinson found clear differences between those primary care physicians who were sued and not sued—just on the basis of the recorded conversations. The doctors who had never been sued spent more than 3 minutes longer with each patient than those who had been sued (18.3 minutes vs 15 minutes). They were also more likely to make “orienting” comments, engage in active listening, and were far more likely to laugh. Levinson reported no difference in the amount or quality of information doctors gave their patients; the never-sued doctors didn’t provide more details about medication or the patient’s condition. The difference was entirely in how they talked to their patients. Of note, the surgeons showed no such predictors. Is it because it was a small study? Or is it because only routine visits were studied, and not visits around things that had gone wrong? Or, are expectations different when a patient visits a primary care physician as opposed to a surgeon?
Another study9 reviewed plaintiffs’ depositions and found that the decision to litigate was based on feelings of desertion, poor information delivery, devaluated views, and misunderstandings of patient perspective. This suggests that lawsuits are mainly filed because of the perception of lack of caring.
And another study from Hickson et al10 looked at physicians who had been sued frequently and found they were often the objects of complaints about their interpersonal interactions.
A review of more recent literature using the search words “litigation and surgeons” resulted in few specific articles about why surgeons get sued. The best article by Griffen and Turnage11 reviewed closed claims from 2 large medical liability insurance company databases. They found that most injuries occurred in healthy patients having elective surgery. Often there was a technical misadventure committed by a competent surgeon. They stated that most of these errors are preventable. Human factors issues and faulty team communication were at the core of most of these events. They concluded that systems of care and good behavioral practices are catalysts that maximize the power of knowledge and skill to achieve good outcomes.
Unexpected and adverse events happen in surgery. COPIC has found that a surgeon’s honesty in disclosing the event to a patient can go a long way toward avoiding a lawsuit. See Figure 18.1. Here’s an example of an actual event a COPIC-insured surgeon faced.
The story: A general surgeon was on call for the ED. He had a thriving practice for 20 years. A 48-year-old woman presented to the ED with right upper quadrant (RUQ) pain and a fever. She was diagnosed with acute cholecystitis and admitted to the surgeon. She received antibiotics and was deemed stable for a laparoscopic cholecystectomy the next day. The surgeon performed the informed consent process thoroughly and it was well-documented. Unfortunately, near the end of the surgery the surgeon realized he had transected the common bile duct (CBD). He attempted to repair it but was unsuccessful. He made the decision to transport the patient to a nearby tertiary care center. The surgeon discussed the case with an expert in CBD surgery, and this surgeon agreed to accept the patient. But the surgeon wasn’t finished yet—his next step was going to the waiting room to speak with the patient’s husband.
After an error or adverse event, it’s appropriate to go through a proper disclosure process, keeping in mind that it may be unknown whether an error has actually occurred. This is COPIC’s recommended approach to disclosure.12 Before the discussion, gather all the information you can so you have the clearest possible idea of what to say. If there is time to practice (there may not be time, such as in this case), practice what you might say with a partner or a colleague. Make the patient’s care the priority. Sit with the patient and family, and explain the situation. If an error is known to have been made, acknowledge it. If no error occurred but there was an adverse outcome, clearly communicate that you wish things were different. Try to have the discussion in a private place, and minimize distractions (ie, turn off your mobile phone). Be aware of your body language, ensuring you are leaning in and maintaining eye contact. Apologize sincerely. Explain what occurred in a clear fashion. Listen carefully with caring and kindness, and answer questions honestly and openly.
You’ve done what you can in terms of apologies and disclosure, but the patient has filed a lawsuit. Here we examine actual closed claims to examine the care provided and the areas a plaintiff attorney may attack. Figure 18.2 outlines the 5 areas of surgery that result in litigation.
The story: A 55-year-old male patient had cataract surgery and received a right lens implant. Preoperatively, the patient had 20/40 vision in the eye with a history of poorly controlled iritis. The surgery went well from a technical standpoint, but a postoperative flare required several more surgeries and resulted in chronic scarring. A lawsuit was filed. The plaintiff’s experts testified that there was no indication for the surgery in the first place.
Rates of poor indications in surgery are quite common. In cataract surgery, a poor indication might be that the vision was correctable with glasses, or it might be that there were comorbidities or ocular conditions that contraindicate surgery. In this situation, plaintiff attorneys claimed that the surgery was not indicated, alleging that the patient’s visual difficulties did not affect the patient’s activities of daily living. The surgeon did not document in the patient’s medical record that the cataract was affecting his activities, which shows how vital documentation about preoperative issues—in the patient’s own words or from a questionnaire—can be.
Discuss with patient why the surgery was needed (or not), documenting this discussion.
Ensure the patient understood the functional impairment that he had and the risk and benefit of the procedure, including the fact that not having surgery was an option.
Understand the patient’s underlying medical condition made surgery more risky, and ensure this was addressed with the patient and in the documentation, which should have noted the patient’s visual impairment and the need for surgery.
Related posts:
Nontechnical Errors in Surgery: Communication Breakdown
The “IKEA Approach” for Patient-Centered Care: A Patient Advocate’s Perspective
Professionalism in Healthcare: The Basic Principles For Surgeons in Training
Epilogue
Patient Safety Training For Resident Physicians: The Telluride Success Story
Management Strategies for Postoperative Orthopedic Infections
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