Medicolegal issues in perioperative medicine: Lessons from real cases

The four Cs offer the best protection

Question from the audience: Even if the physician had done the ECG, how do you know the plaintiff’s attorney wouldn’t attack him for not ordering a stress test? And if he had done a stress test, then they’d ask why he didn’t order a catheterization. Where is it going to end?

Dr. Michota: You make a good point. The best way for physicians to protect themselves is to follow the four Cs mentioned earlier: competent care, communication, compassion, and charting. After I learned about this case, the next time I was in the clinic and didn’t order an ECG, I asked the patient, “Did you expect that we would do an ECG here today?” When he responded that he did, I talked to him about how it wasn’t indicated and probably would not change management. So that level of communication can sometimes prevent a lawsuit that might stem from a patient not feeling informed. I’m not suggesting that you spend hours explaining details with each patient, but it’s good to be aware that cases like this happen and how you can reduce their likelihood.

Battles of the experts

Question from the audience: Exactly what standard is applied when the “standard of care” is determined in a court? For instance, my hospital may routinely order stress tests, whereas the American College of Cardiology and American Heart Association (ACC/AHA) guidelines are more restrictive in recommending when a stress test is indicated. Which standard would apply in court?

Dr. Michota: It’s easy to find a plaintiff’s expert who will say just about anything. If you claim that everybody gets a stress test at your community hospital and a patient dies during the stress test, the plaintiff’s team will find an expert to say, “That was an unnecessary test and posed an unnecessary risk.” If you’re in a setting where stress tests are rarely done for preoperative evaluation, they’ll find an expert to say, “Stress testing was available; it should have been done.”

This is when the battles of the experts occur. If you have a superstar physician on your defense team, the plaintiff will have to find someone of equal pedigree who can argue against him or her. Sometimes cases go away because the defense lines up amazing experts and the plaintiffs lose their stomach for the money it would take to bring the case forward. But usually cases do not involve that caliber of experts; most notables in the field are academic physicians who don’t do this type of work. Usually you get busy physicians who spend 75% of their time in clinical practice and seem smart enough to impress the jury. Although they can say things that aren’t even factual, they can sway the jury. 

Question from the audience: I would not have ordered a preoperative ECG on this healthy 75-year-old, but one of the experts at this summit said that he would get a baseline ECG for such a case. How are differences like these reconciled in the legal context?

Dr. Michota: The standard to which we are held is that of a reasonable physician. Can you show that your approach was a reasonable one? Can you say, “I didn’t order the ECG for the following reasons, and I discussed the issue with the patient”? Or alternately, “An ECG was ordered for the following reasons, and I discussed it with the patient”? The jury will want to know whether the care that was provided was reasonable.

Costs and consequences of being sued

Question from the audience: What does it cost to mount a defense in a malpractice trial?

Mr. Donnelly: You can easily spend more than $100,000 to go through a trial. Plaintiffs typically have three or four experts in various cities across the country, and you have to pay your lawyers to travel to those cities and take the depositions. And delays often occur. Cases get filed, dismissed, and refiled. A lot of the work that the lawyers did to prepare for the trial will have to be redone for a second, third, or fourth time as new dates for the trial are set. There are many unforeseen costs.

Dr. Michota: Let’s say the physician who did the preoperative evaluation in this case was not affiliated with the hospital and wasn’t involved in the surgery or any of the postoperative monitoring and management, which we see may have been questionable. This physician might get pulled into the case anyway because he didn’t order an ECG in the preoperative evaluation. Although an ECG wasn’t recommended in this case by the ACC/AHA guidelines, this doctor is looking at spending considerable time, energy, and money to defend himself. What if his attorney recommends that he settle for a nominal amount—say, $25,000—because it’s cheaper and easier? Are there repercussions for him as a physician when he pays out a settlement under his name?

Mr. Donnelly: Absolutely. He will be reported to the National Practitioner Data Bank, and when he renews his license or applies for a license to practice in another state, he must disclose that he has been sued and paid a settlement. The new consumer-targeted public reporting Web sites will also publicize this information. It is like a black mark against this doctor even though he never admitted any liability.

CASE 3: A CLEAR CASE OF NEGLIGENCE―WHO IS RESPONSIBLE

A 67-year-old man undergoes a laminectomy in the hospital. He develops shortness of breath postoperatively and is seen by the hospitalist team. He is started on full-dose weight-adjusted low-molecular-weight heparin (LMWH) for possible pulmonary embolism or acute coronary syndrome. His symptoms resolve and his workup is negative. It is a holiday weekend. The consultants sign off but do not stop the full-dose LMWH. The patient is discharged to the rehabilitation unit by the surgeon and the surgeon’s assistant, who include all the medications at discharge, including the full-dose LMWH. The patient is admitted to a subacute nursing facility, where the physiatrist transfers to the chart all the medications on which the patient was discharged.

The patient does well until postoperative day 7, when he develops urinary retention and can’t move his legs. At this point, someone finally questions why he is on the LMWH, and it is stopped. The patient undergoes emergency surgery to evacuate a huge spinal hematoma, but his neurologic function never recovers.

Dr. Michota: I think most of us would agree that there was negligence here. I bet a plaintiff’s attorney would love to have this case.

Mr. Donnelly: Absolutely. The patient can no longer walk, so it’s already a high-value case. It would be even more so if we supposed that the patient were only 45 years old and a corporate executive. That would make it a really high-value case.

Dr. Michota: What do you mean? Does a patient’s age or economic means matter to a plaintiff’s attorney?

Mr. Donnelly: Of course. For a plaintiff’s attorney, it’s always nice to have a case like this where there’s negligence, but the high-dollar cases typically involve a likable plaintiff who is a high wage earner with a good family. A plaintiff’s lawyer will take a case that may not be so strong on evidence of negligence if it’s likely that a jury will like the plaintiff and his or her family. Kids always help to sway a jury—jurors will feel sorry for them and want to help them. This case even has two surgeries, so the family’s medical bills will be especially high. It’s a great case for a plaintiff’s attorney.

Who’s at fault?

Dr. Michota: Let’s look at a few more case details. Once the various doctors involved in this case realized what happened, they got nervous and engaged in finger-pointing. The surgeons felt that the hospitalists should have stopped the LMWH. The hospitalists claimed that since they had signed off, the surgeons should have stopped it. The physiatrist said, “Who am I to decide to stop medications? I assumed that the hospital physicians checked the medications before sending the patient to the rehab facility.”

Interestingly, a hospitalist went back and made a chart entry after the second surgery. He wrote, “Late chart entry. Discussion with surgeon regarding LMWH. I told him to stop it.” Does that make him free and clear?

Mr. Donnelly: Actually, the hospitalist just shot his credibility, and now the jury is really angry. The dollar value of the case has just gone up.

Dr. Michota: Okay, suppose the hospitalist wouldn’t do something that obvious. Instead, he goes back to the chart after the fact, finds the same color pen as the entry at the time, and writes, “Patient is okay. Please stop LMWH,” and signs his name. Is there any way anyone is going to be able to figure that out?

Mr. Donnelly: All the other doctors and nurses will testify that the note was not in the chart before. The plaintiff will hire a handwriting expert and look at the different impressions on the paper, the inks, and the style of writing. Now the hospitalist has really escalated the situation and is liable for punitive damages, which will come out of his own pocket, since malpractice insurance doesn’t cover punitive damages. His license may be threatened. The jury will really be angered, and the plaintiff’s lawyer will love stoking the situation.