Tag Archives: malpractice

More on Malpractice: Can Surgical Residents Be Sued?

Respondeat superior. Let the master answer. This is a common law term that allows employers to be held responsible for the misdeeds of their employees or agents.

And more than half a century ago, the “captain of the ship” doctrine arose in surgery. This held the supervising surgeon responsible for everything that happened in the operating room.

And because of these two premises, there has been widespread presumption that surgical trainees are immune to being named in a malpractice action. Unfortunately, this is not true! There is no law that prevents residents from being included in a lawsuit.

So how common is resident involvement in malpractice suits? What are the damages? What are the consequences?  Researchers at the Mayo Clinic reviewed 10 years of data from the Westlaw online legal research database. They included all cases that involved surgical interns, residents, or fellows.

Here are the factoids:

  • A total of 87 malpractice cases involving surgical trainees were identified over 10 years (!)
  • 47% involved general surgical cases, 18% orthopedics, and 11% OB. The remainder were less than 5% each.
  • 70% of cases involved elective surgical procedures. The most common one was cholecystectomy (6 cases).
  • Half involved nonoperative decision making, and 39% involved intraoperative errors and injuries. The remainder had both components.
  • Failure of the trainee to evaluate a patient in person was cited in 12% of cases.
  • Lack of attending supervision was involved in 55%.
  • Informed consent issues were cited in 21%, documentation errors in 15%, and communications problems in 10%
  • There were twice as many cases involving junior residents compared to seniors and fellows
  • Median payout to the patient (and his attorney) was about $900K

Bottom line: At first, I though this was going to be an interesting paper. But it went downhill as soon as I started to read the analysis. Yes, it scanned 10 years worth of detailed malpractice data. BUT IT DIDN’T GIVE US A DENOMINATOR! There must have been tens of thousands of surgical malpractice cases during that time period across the US. And they found only 87 involving surgical trainees!

The authors conclude that this work “highlights the importance of perioperative management, particularly among junior residents, and appropriate supervision by attending physicians as targets for education on litigation prevention.”

This is ridiculous. The mere fact that the authors do not mention the total number of surgical malpractice cases in the database over the study period (denominator) implies that they were trying to emphasize the numbers they did publish. They didn’t want to show you how low the resident numbers were by comparison. On average, 9 were involved in a lawsuit every year. 

How many surgical residents and fellows are there? This is a bit hard to pin down. There are roughly 1200 categorical surgical residency spots every year. And then there are some prelim spots. Let’s add a few thousand more (wild ass guess), so that puts us at 5,000. Include orthopedics and other surgical specialty residencies? Add a few thousand more. And then fellows. Who knows? Add another  thousand? (If anybody has more accurate answers, please leave a comment!)

So 9 out of 10,000+ surgical trainees get sued every year. Do we really need to set up some kind of formal education on malpractice avoidance??? Not for those numbers. Just read, see your patients, especially when they are having problems, document everything you do, and practice good handoff communications. Then worry about more important things!

Reference: Medical malpractice lawsuits involving surgical residents  JAMA  Surg, published online Aug 30, 2017  

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10 Things That Will Get You Sued – Part 3

#7. Inappropriate prescribing

Most trauma professionals worry about over-prescribing pain medication. But under-prescribing can create problems as well. Uncontrolled pain is a huge patient dissatisfier, and can lead to unwelcome complications as well (think pneumonia after rib fractures). Always do the math and make sure you are sending the right drug in the right amount home with your patient. If the patient’s needs are outside the usual range, work with their primary provider or a pain clinic to help optimize their care.

#8. Improper care during an emergency

This situation can occur in the emergency department when the emergency physician calls a specialist to assist with management. If the specialist insists on the emergency physician providing care because they do not want to come to the hospital, the specialist opens themselves up to major problems if any actual or perceived problem occurs afterwards. The emergency physician should be sure to convey their concerns very clearly, tell the specialist that the conversation will be documented carefully, and then do so. Specialists, make sure you understand the emergency physician’s concerns and clearly explain why you think you don’t need to see the patient in person. And if there is any doubt, always go see the patient.

#9. Failure to get informed consent

In emergency situations, this is generally not an issue. Attempts should be made to communicate with the patient or their surrogate to explain what needs to happen. However, life or limb saving procedures must not be delayed if informed consent cannot be obtained. Be sure to fill out a consent as soon as practical, and document any attempts that were made to obtain it. In urgent or elective situations, always discuss the procedure completely, and provide realistic information on expected outcomes and possible complications. Make sure all is documented well on the consent or in the EHR. And realize that if you utilize your surrogates to get the consent (midlevel providers, residents), you are increasing the likelihood that some of the information has not been conveyed as you would like.

#10. Letting noncompliant patients take charge

Some patients are noncompliant by nature, some are noncompliant because they are not competent (intoxicated, head injured). You must use your judgment to discern the difference between the two. Always try to act in the best interest of your patient. Document your decisions thoroughly, and don’t hesitate to involve your legal / psych / social work teams.

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10 Things That Will Get You Sued – Part 2

#3. You are responsible for the conduct of your staff

If the people who work for you treat patients poorly, you may be responsible. It is important that your staff have bedside manner at least as good as yours.

#4. Avoiding your patients

Some of your patients may need to contact you, either while in the hospital or while at home. Don’t appear to be inaccessible. This is an extension of your bedside manner. Return phone calls or messages promptly, or have one of your staff do so. Make time to meet with patient families while in the hospital. Remember, you deal with trauma all the time; this is probably the first time they have and it is extremely stressful.

#5. Ordering a test without checking the result

I presume that if you order a test, you are interested in the result. And hopefully it will make some difference in patient care. If not, don’t order it. But if you do order a test, always check the result. If a critical result is found, don’t assume that “someone” will tell you about it. You are responsible for checking it and dealing with any subsequent orders or followup that is needed.

#6. “What we have here is a failure to communicate” – part 2

Most of the time, our patients have primary care providers somewhere. Make it a point to identify them and keep them in the loop. Provide, at a minimum, a copy of the discharge summary from the hospital or emergency department. If new therapies of any kind are started, make sure they are aware. And if an “incidentaloma” is found (a new medical condition found on lab tests or imaging studies), followup with the primary care provider to make sure that they are aware of it so they can take over responsibility for further diagnosis or treatment.

Tune in for the final installment in my next post.

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10 Things That Will Get You Sued – Part 1

Many trauma professionals believe that they can only be sued if they make a medical error and some harm occurs. Unfortunately, this is not entirely true. Yes, this is one obvious way to spark a suit or claim.

Unfortunately, it goes beyond that. Your patient may sue you if they even believe that they were harmed in some way, or think that something untoward happened while you were providing care. Here are the top 10 reasons for getting sued and my thoughts on each (in no particular order).

#1. “What we have here is a failure to communicate”

Your interpersonal skills are at least as important as your clinical skills! You may be a clinical prodigy, but if you are an asshole at the bedside, your patients will never appreciate your skills. You must be able to listen and empathize with your patient. Sit down, look at them eye to eye. Listen attentively. Don’t appear to be in a rush to get out of the room. You’d be surprised at how much more valuable information you will get and the relationship you create.

#2. “Work not documented is work not done”

This is my quote and it’s one of my favorites. Accurate, complete, timely, and legible documentation is a must! The legibility problem is fading with the widespread use of electronic health records (EHR, although this is creating new problems). Documentation, or lack thereof, will not get you sued. However, if you are involved in a suit or claim and your care is scrutinized, poor or missing documentation will make it impossible to plausibly contend that you did what you say you did.

It’s critical that you document every encounter thoroughly enough to be able to reconstruct what you were thinking and what you did. And providing a date and time is absolutely critical. This is especially important when the EHR timestamps everything you enter. Frequently, you will be documenting something somewhat after the fact. Always make sure that it’s not too far after the fact. Document as promptly as you can, and include the time that you were actually providing the service.

And never go back and try to “correct” your documentation, especially if the chart is being requested for inclusion in a suit or claim. If you believe there is an error, create an addendum and explain why the correction is necessary. If a suit or claim has been started, do not touch or open the chart without advice from your legal counsel.

Tune in for Part 2 in my next post!

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Nursing Malpractice: The Basics – Part 2

What are common sources of malpractice complaints against nurses? The most common event is medication error. Most people worry about common errors like wrong dose, wrong drug, and wrong route of administration. But one less commonly considered drug-related responsibility is assessment for side effects and toxicity of medications administered.

Other common reasons include failure to adequately monitor and assess the patient, and failure to supervise a patient that results in harm. Significant changes in patient condition must be reported to the responsible physician. However, doing so does not necessarily get the nurse off the hook. If the physician’s response leads the nurse to believe that they have misdiagnosed the problem or are prescribing an incorrect drug or course of action, the nurse is obligated to follow the chain of command to notify a nursing supervisor or other physician of the event. 

And finally, one of the most common issues complicating malpractice cases of any kind is documentation. Lawsuits must typically be filed within two years of the event that caused harm. Once that occurs though, several more years may pass before significant action occurs. Collection and review of documentation, identification of experts, and collection of depositions takes time. And unfortunately, our memories are imperfect after many years go by. Good documentation is paramount! “Work not documented is work not done,” I always say. And poor documentation allows attorneys to make your good work look as bad as they want and need it to.

Reference: Examining Nursing Malpractice: A Defense Attorney’s Perspective. Critical Care Nursing 23(2):104-107, 2003.