Medicolegal issues in perioperative medicine: Lessons from real cases
ABSTRACT
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.
KEY POINTS
- 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.
Who should be obtaining informed consent?
Question from the audience: Who should have obtained informed consent for this patient—the doctor who referred him for the stress test or the cardiologist who conducted the test? Sometimes I have to get informed consent for specialty procedures that I myself do not understand very well. Could I be considered culpable even though I’m not the one doing the procedure? I can imagine an attorney asking, “Doctor, are you a cardiologist? How many of these tests do you do? Why are you the one doing the informed consent? Did the patient really understand the effects of the test? Do you really understand them?”
Dr. Michota: That question is even more pertinent if the patient is referred to another institution covered under different malpractice insurance. You can bet the other provider will try to blame you if something goes wrong.
Mr. Donnelly: In an ideal world, both the referring physician and the physician who does the test discuss the risks, benefits, and alternatives, and answer all questions that the patient and family have. The discussion is properly documented in the medical record.
Question from the audience: Can you address the issue of supervision? What is the liability of a resident or intern in doing the informed consent?
Mr. Donnelly: The attending physician is usually responsible for everything that a resident does. I would prefer that the attending obtain the informed consent.
Dr. Michota: But our fellows and second-year postgraduate residents are independent licensed practitioners in Ohio. Does letting them handle informed consent pose a danger to a defense team’s legal case?
Mr. Donnelly: It’s not necessarily a danger medically, but it gives the plaintiff something to talk about. They will ignore the fact that an independent licensed practitioner obtained the informed consent. They will simply focus on the fact that the physician was a resident or fellow. They will claim, “They had this young, inexperienced doctor give the informed consent when there were staff physicians with 20 years of experience who should have done it.” Plaintiffs will attempt to get a lot of mileage out of these minor issues.
Question from the audience: At our institution, the physician is present with the technician, so that when the physician obtains consent, the technician signs as a witness. The bottom of the long form basically says, “By signing this form, I attest that the physician performing the test has informed me of the benefits and risks of this test, and I agree to go ahead. I fully understand the implications of the test.” Does that have value in the eyes of the law?
Mr. Donnelly: That’s a great informed consent process and will have great value. That said, you can still get sued, because you can get sued for anything. But the jury ultimately decides, and odds are that with a process like yours they will conclude that the patient knew all the risks and benefits and alternatives because he or she signed the form and the doctor documented that everything was discussed.
Confidentiality vs family involvement
Comment from the audience: I’m struck by the comments that informed consent is supposed to be with the family so that there will be living witnesses in case the patient dies. According to Health Insurance Portability and Accountability Act (HIPAA) regulations, we have to be very careful to maintain confidentiality. For a competent patient, medical discussions are private unless specific permission has been obtained to involve the family.
Mr. Donnelly: Yes, we’ve assumed that the patient gave permission to discuss these issues with his family. If the patient does not want that, obviously you can’t include the family because of HIPAA regulations.
Question from the audience: Should we routinely ask a patient to involve the family in an informed consent in case something goes wrong?
Mr. Donnelly: No. In general, it’s appropriate only if the family is already present.
Dr. Michota: Keep in mind that there’s nothing you can do to completely prevent being sued. You can do everything right and still get sued. If you’re following good clinical practice and a patient doesn’t want to involve the family, all you can do is document your discussion and that you believed the patient understood the risks of the procedure.
Question from the audience: Do you consider a patient’s decision-making capacity for informed consent? Should physicians document it prior to obtaining consent? A plaintiff can always claim that an elderly patient did not understand.
Mr. Donnelly: I have never seen specific documentation that a patient had capacity to consent, but it’s a good idea for a borderline case. For such a case, it’s especially important to involve the family and document, “I discussed the matter with this elderly patient and her husband and three daughters.” You could also get a psychiatric consult or a social worker to help determine whether a patient has the capacity to make legal and medical decisions.
CASE 2: FATAL POSTSURGICAL MI RAISES QUESTIONS ABOUT THE PREOP EVALUATION
A 75-year-old man with rectal cancer presents for colorectal surgery. He has a remote cardiac history but exercises regularly and has a good functional classification without symptoms. The surgery is uneventful, but the patient develops hypotension in the postanesthesia care unit. He improves the next morning and goes to the colorectal surgery ward. Internal bleeding occurs but initially goes unrecognized; on postoperative day 2, his hemoglobin is found to be 2 g/dL and he is transferred to the intensive care unit, then back to the operating room, where he suffers cardiac arrest. He is revived but dies 2 weeks later. Autopsy reveals that he died of a myocardial infarction (MI).
Dr. Michota: The complaint in this case is that the patient did not receive a proper preoperative evaluation because no cardiac workup was done. As the hypothetical defense attorney, do you feel this case has merit? The patient most likely had an MI from demand ischemia due to hemorrhage, but does this have anything to do with not having a cardiac workup?
Mr. Donnelly: You as the physician are saying that even if he had an electrocardiogram (ECG), it is likely that nothing would have been determined. The cardiac problems he had prior to the surgery in question were well controlled, occurred in the distant past, and may not have affected the outcome. Maybe his remote cardiac problems were irrelevant and something else caused the MI that killed him. Nevertheless, the fact that the ECG wasn’t done still could be a major issue for the plaintiff’s attorney. After the fact, it seems like a no-brainer that an ECG should have been done in a case like this, and it’s easy for the plaintiff to argue that it might have detected something. The defense has to keep reminding the jury that the case cannot be looked at retrospectively, and that’s a tall order.
Dr. Michota: This case shows that even in the context of high-quality care, such things can happen. We have spent a lot of time at this summit talking about guidelines. But at the end of the day, if somebody dies perioperatively of an MI, the family may start looking for blame and any plaintiff’s attorney will go through the record to see if a preoperative ECG was done. If it wasn’t, a suit will get filed.
