Advertisement

Lawyers Dodge Malpractice Insurance; Should Doctors Follow Suit?

The September 2012 issue of the AARP Bulletin has a story about a woman who sued an elder-law attorney for legal malpractice. Bear with me. It’s an interesting tale. In 2004, a man consulted an elder-law attorney to set up a trust that would distribute his assets fairly. He had a daughter from his previous marriage and his wife had five children from her previous marriage. The story is a bit complicated but his plan was that should he die first, the wife would inherit everything. Then when she died, his biological daughter was to receive whatever was left. But the lawyer made an error and the trust actually was written in such a way that all six children (his daughter and his wife’s five) would get equal shares of the estate instead of his daughter getting it all. Sure enough, the man died first and the mistake was discovered. Even though the wife was still alive, the man’s daughter sued the attorney for legal malpractice. He admitted the error but defended himself by saying the daughter had not yet suffered any damages so he owed her nothing. He also said the amount of money that might be left in the trust was impossible to calculate. Based on the life expectancy of the wife and the amount of money in the trust, it was estimated that the daughter should have been entitled to over $500,000 when the wife died. The court ruled that the lawyer’s reasoning had some merit but, because of the serious nature of the error, it awarded the daughter $472,000 in damages. Fine and dandy, right?...

New Additions to the “Never Events” List

You are probably familiar with the CMS “never events” initiative. CMS has decided it will not reimburse hospitals for treatment related to complications that it says should never occur. Here is the current list. Foreign object retained after surgery Air embolism Blood incompatibility Stage III and IV pressure ulcers Falls and trauma Manifestations of poor glycemic control Catheter-associated urinary tract infection Vascular catheter-associated infection Surgical site infection after coronary artery bypass graft, bariatric surgery for obesity and certain orthopedic procedures Deep vein thrombosis/pulmonary embolism after certain orthopedic procedures According to American Medical News, two more complications have been proposed as additions. One is acquired conditions stemming from cardiac implantable electronic device surgeries and the other is iatrogenic pneumothorax associated with venous catheterization. I have no problem with some of the items on the list. Foreign bodies like sponges or instruments should not be left in patients after surgery. Air embolism and blood incompatibility should be 100% preventable. But I do not see how catheter-associated UTIs or vascular catheter associated infections can be completely prevented. Some sick patients with depressed immune systems are going to get infections. I believe it is impossible to completely prevent wound infections in all clean cases. As has been shown in studies of SCIP compliance, some patients get wound infections after colon surgery despite the timely use of the right antibiotic. DVT/PE cannot be prevented in every orthopedic procedure. I am unaware of any DVT study in which no patients in the experimental arm developed DVTs or PEs. Patients will develop DVT or PE even with the best evidence-based care. With very few exceptions, every...

Physician Decision-Making: Damned If You Do…

Here’s a little story from the early days of my first job as a chairman of surgery. Shortly after I assumed the role of surgical chairman in a community teaching hospital at the ripe old age of 40, and having absolutely no administrative experience, I visited a mentor of mine whom I had known since I was a medical student. He had been serving in a similar role at a larger hospital than mine, and I thought he might be able to share some wisdom about how to be a good chairman. He was dispensing sound advice for most of the hour or so I spent with him. Then he said something that struck me: “Sometimes the unexpected happens and there’s no simple solution.” He told me that among the challenges he was facing were two lawsuits. One was from the family of a patient who had died after a carotid endarterectomy that had been performed by a surgeon in his department. The plaintiffs were suing the hospital and my mentor, the surgical chairman, for allowing what they alleged was an incompetent surgeon to do complex vascular surgery. The other lawsuit was by a surgeon in his department who had requested privileges to perform carotid surgery, which had been denied by my mentor on the grounds that in his opinion, the surgeon was not adequately trained in carotid surgery. I never heard the outcome of either case, but it certainly seemed like a no-win situation. Although that encounter occurred some 25 years ago, the problem persists today. For example, patient advocates are concerned that pain is not being adequately...

Complications & Collateral Damage

“Collateral damage: the effect of patient complications on the surgeon’s psyche” was a brief but interesting paper that probably went unnoticed by many. Using the results of a survey completed by only 123 of the 403 surgeons who received it, the paper studied the effect of complications on the emotional well-being of surgeons. You could argue that the response rate of 30.5% renders the conclusions suspect. But that’s not the point. The subject matter hits close to home for any surgeon who cares about his patients and what he does to them. There are two types of complications—those that happen despite your best efforts, such as a postoperative MI in a seemingly healthy patient or an infection that develops after proper surgical technique and appropriate antibiotic prophylaxis were used. Then there are the complications that occur because you made a mistake. Examples of this are sepsis due to an anastomotic leak due to your well-intended but erroneous judgment that the patient’s bowel wall would hold the staples or your failure to operate soon enough on a patient with a bowel obstruction. Of course when any complication occurs, we feel bad for the patient and the family. But the latter type of complication can keep you awake at night, undermine your confidence and your ability to function, and even affect your enjoyment of life in general. Eventually, you get over it and move on, but the next time is no easier. According to the survey, about two-thirds of the surgeons felt it was difficult to deal with the emotional aspect of  complications throughout their careers, and experience did not seem...
[ HIDE/SHOW ]