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”).


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