Category Archives: General

More on Malpractice: Can Surgical Residents Be Sued?

September 5, 2017 The Trauma Pro Leave a comment

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

Related posts:

General

10 Things That Will Get You Sued – Part 3

August 30, 2017 The Trauma Pro Leave a comment

#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.

Related posts:

General

10 Things That Will Get You Sued – Part 2

August 29, 2017 The Trauma Pro Leave a comment

#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.

Related posts:

General

10 Things That Will Get You Sued – Part 1

August 28, 2017 The Trauma Pro Leave a comment

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!

Related posts:

General

IVC Filters: Another Nail In The Coffin?

August 21, 2017 The Trauma Pro Leave a comment

IVC filter insertion has been one of our tools for preventing pulmonary embolism for decades. Or so we thought. Its popularity has swung back and forth over the years, and has been in the waning stage now quite some time. This pendulum like motion offers an opportunity to study effectiveness when coupled with some of the large datasets that are now available to us.

IVC filters have been used in two ways: prophylactically in patients at high risk for pulmonary embolism (PE) who cannot be anticoagulated for some reason, and therapeutically once a patient has already suffered one. Over the years, guidelines have changed, and have frequently been in conflict. Currently, the American College of Chest Physicians does not recommend IVC filters in trauma patients, while the Eastern Association for the Surgery of Trauma promote their use in certain subsets.

A Pennsylvania group performed a large, retrospective review of three databases, the Pennsylvania Trauma Outcome Study (462K patients), the National Trauma Data Bank (5.8M patients), and the National Inpatient Sample. All were patients with an emergent trauma-related admission.

Here are the most interesting factoids:

About 2% of all patients underwent IVC filter insertion, and 94% were inserted prophylactically
About 90% of patients with a prophylactic filter had at least one predictor for PE, which means that the remaining 10% had none (!)
Conversely, about 86% of patients who developed a PE had at least one risk factor, meaning that 14% had no recognized risk factors (!!)
The use of IVC filters peaked in 2006-2008 at 2-4%, then falling steadily over the following 5-7 years to less than 1%
PE rates peaked in 2008, then declined by 30% in the PTOS sample and stayed steady in the NTDB

Bottom line: The use of IVC filters peaked in 2008 and has been in decline since then. But interestingly, the rates of PE and fatal PE have been steady to declining, depending on the data set. Obviously, there are always some shortcomings for studies like this. Remember, IVC filters are intended to prevent fatal PE. It is possible that some fatal PEs were not identified in these databases. Furthermore, it was not possible to obtain any information on the use of chemical prophylaxis in these patients.

Overall, there has been no increase in PE and fatal PE rates over the time period that IVC filter usage has been decreasing. This suggests that these devices have not had their intended effect. Trauma professionals need to very seriously consider the specific indications in any patient they are considering for insertion. They may not have the protective effect you think.

Related posts:

Reference: Vena Cava Filter Use in Trauma and Rates of Pulmonary Embolism, 2003-2015. JAMA Surg 152(8):724-732, 2017.

Home of the Trauma Professional's Blog