Medicolegal issues in perioperative medicine: Lessons from real cases

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Medical malpractice lawsuits are commonly brought against surgeons, anesthesiologists, and internists involved in perioperative care. They can be enormously expensive as well as damaging to a doctor’s career.
While physicians cannot eliminate the risk of lawsuits, they can help protect themselves by providing competent and compassionate care, practicing good communication with patients (and their families when possible), and documenting patient communications and justifications for any medical decisions that could be challenged.


  • The standard to which a defendant in a malpractice suit is held is that of a “reasonable physician” dealing with a “reasonable patient.”
  • In malpractice cases, the plaintiff need only establish that an allegation is “more likely than not” rather than the “beyond a reasonable doubt” threshold used for criminal cases.
  • Plaintiffs typically seek damages (financial compensation) for economic losses as well as for pain and suffering. Awarding punitive damages against an individual physician for intentional misconduct is rare, and such damages are usually not covered by malpractice insurance.
  • Settling a case is often cheaper and easier than going to court, but the physician’s reputation may be permanently damaged due to required reporting to the National Practitioner Data Bank.
  • Informed consent should involve more than a patient signing a form: the doctor should take time to explain the risks of the intervention as well as available alternatives, and document that the patient understood.



If this is a typical audience of physicians involved in perioperative care, about 35% to 40% of you have been sued for malpractice and have learned the hard way some of the lessons we will discuss today. This session will begin with an overview of malpractice law and medicolegal principles, after which we will review three real-life malpractice cases and open the floor to the audience for discussion of the lessons these cases can offer.


If a physician practices long enough, lawsuits are nearly inevitable, especially in certain specialties. Surgeons and anesthesiologists are sued about once every 4 to 5 years; internists generally are sued less, averaging once every 7 to 10 years,1 but hospitalists and others who practice a good deal of perioperative care probably constitute a higher risk pool among internists.

At the same time, it is estimated that only one in eight preventable medical errors committed in hospitals results in a malpractice claim.2 From 1995 to 2000, the number of new malpractice claims actually declined by approximately 4%.3

Jury awards can be huge

Fewer than half (42%) of verdicts in malpractice cases are won by plaintiffs.4 But when plaintiffs succeed, the awards can be costly: the mean amount of physician malpractice payments in the United States in 2006 (the most recent data available) was $311,965, according to the National Practitioner Data Bank.5 Cases that involve a death result in substantially higher payments, averaging $1.4 million.4

Lawsuits are traumatic

Even if a physician is covered by good malpractice insurance, a malpractice lawsuit typically changes his or her life. It causes major disruption to the physician’s practice and may damage his or her reputation. Lawsuits cause considerable emotional distress, including a loss of self-esteem, particularly if the physician feels that a mistake was made in the delivery of care.


Malpractice law involves torts, which are civil wrongs causing injury to a person or property for which the plaintiff may seek redress through the courts. In general, the plaintiff seeks financial compensation. Practitioners do not go to jail for committing malpractice unless a district attorney decides that the harm was committed intentionally, in which case criminal charges may be brought.

There are many different categories of claims in malpractice law. The most common pertaining to perioperative medicine involve issues surrounding informed consent and medical negligence (the worst form being wrongful death).

Informed consent

Although everyone is familiar with informed consent, details of the process are called into question when something goes wrong. Informed consent is based on the right of patient autonomy: each person has a right to determine what will be done to his or her body, which includes the right to consent to or refuse treatment.

For any procedure, treatment, or medication, patients should be informed about the following:

  • The nature of the intervention
  • The benefits of the intervention (why it is being recommended)
  • Significant risks reasonably expected to exist
  • Available alternatives (including “no treatment”).

If possible, it is important that the patient’s family understand the risks involved, because if the patient dies or becomes incapacitated, a family that is surprised by the outcome is more likely to sue.

The standard to which physicians are held in malpractice suits is that of a “reasonable physician” dealing with a “reasonable patient.” Often, a plaintiff claims that he or she did not know that a specific risk was involved, and the doctor claims that he or she spent a “typical” amount of time explaining all the risks. If that amount of time was only a few seconds, that may not pass the “reasonable physician” test, as a jury might conclude that more time may have been necessary.

Negligence and wrongful death

Negligence, including wrongful death, is a very common category of claim. The plaintiff generally must demonstrate four elements in negligence claims:

  • The provider had a duty to the patient
  • The duty was breached
  • An injury occurred
  • The breach of duty was a “proximate cause” of the injury.

Duty arises from the physician-patient relationship: any person whose name is on the medical chart essentially has a duty to the patient and can be brought into the case, even if the involvement was only peripheral.

Breach of duty. Determining whether a breach of duty occurred often involves a battle of medical experts. The standard of care is defined as what a reasonable practitioner would do under the same or similar circumstances, assuming similar training and background. The jury decides whether the physician met the standard of care based on testimony from experts.

The Latin phrase res ipsa loquitur means “the thing speaks for itself.” In surgery, the classic example is if an instrument or a towel were accidentally left in a patient. In such a situation, the breach of duty is obvious, so the strategy of the defense generally must be to show that the patient was not harmed by the breach.

Injury. The concept of injury can be broad and often depends on distinguishing bad practice from a bad or unfortunate outcome. For instance, a patient who suffered multisystem trauma but whose life was saved by medical intervention could sue if he ended up with paresthesia in the foot afterwards. An expert may be called to help determine whether or not the complication is reasonable for the particular medical situation. Patient expectations usually factor prominently into questions of injury.

Proximate cause often enters into situations involving wrongful death. A clear understanding of the cause of death or evidence from an autopsy is not necessarily required for a plaintiff to argue that malpractice was a proximate cause of death. A plaintiff’s attorney will often speculate why a patient died, and because the plaintiff’s burden of proof is so low (see next paragraph), it may not help the defense to argue that it is pure speculation that a particular event was related to the death.

A low burden of proof

In a civil tort, the burden of proof is established by a “preponderance of the evidence,” meaning that the allegation is “more likely than not.” This is a much lower standard than the “beyond a reasonable doubt” threshold used for criminal proceedings. In other words, the plaintiff has to show only that the chance that malpractice occurred was greater than 50%.

Three types of damages

Potential damages (financial compensation) in malpractice suits fall into three categories:

  • Economic, or the monetary costs of an injury (eg, medical bills or loss of income)
  • Noneconomic (eg, pain and suffering, loss of ability to have sex)
  • Punitive, or damages to punish a defendant for willful and wanton conduct.

Punitive damages are generally not covered by malpractice insurance policies and are only rarely involved in cases against an individual physician. They are more often awarded when deep pockets are perceived to be involved, such as in a case against a hospital system or an insurance company, and when the jury wants to punish the entity for doing something that was believed to be willful.


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