Q: The colonoscopist at a private endoscopy center perforated a patient’s transverse colon. The patient was immediately transferred to our hospital and our on-call surgeon did the repair. I was the anesthesiologist on the case. The surgery apparently went smoothly but the hospital course was complicated by a later bout with an infected collection that had to be drained twice under CT guidance. The patient actually did well after that but she was very angry – which I can certainly understand since a procedure that should have been over in an hour became a two-week hospital stay – and I would be very surprised if she does not sue my hospital as well as the endoscopy facility. I have a notice requirement in my malpractice coverage but would this be something that I have to report now?

A: Most malpractice insurance contracts have a requirement that the carrier is to be informed of “a fact or circumstance which may give rise” to a future claim, including a malpractice action or a professional complaint that the carrier would be obligated to represent the doctor in and/or indemnify the doctor for.  The reason for such a requirement is that the insurer wants to get in on the ground floor of the problem and control the matter from the start rather than having to mop up later.

“May” does a lot of heavy legal lifting there, though. It is indefinite enough to cover any patient dissatisfaction or clinical difficulty.  However, no carrier expects to be called about every gripe or complicated case. There should be an actual threat to sue or complain (even if you believe that the case would be unfounded) or circumstances that make it likely that there will be a lawsuit or complaint.

It is the second setting that tends to confuse doctors.

As an example of what should be reported, consider the case of an attorney who was sued for legal malpractice. He had failed to describe a portion of a property being conveyed in a deed and so the client did not receive all of the property under the contract of sale. When the client became aware of the problem he sent the attorney an email about it. The email did not threaten a lawsuit, though – it just asked that the problem be dealt with. The attorney did not inform his carrier of that. When the attorney failed to remedy the situation because it was not actually fixable the client then did sue.  The insurer then disavowed coverage in the case because the attorney had failed to give it notice of a likely claim.

In that case the attorney knew that he had committed a serious error and he also knew that he could not cure that error.  A lawsuit was therefore foreseeable from the first e-mail even though the client was not making specific threats to sue at that point.

Your situation, though, is the opposite of that – you were not present at the initial injury and then only gave anesthesia during the corrective procedure, which went well as to your work. Even if the surgeon is sued for an alleged negligent repair you have no reasonable expectation of any of the events giving rise to a future claim against you because your role was uneventful.

You might be called as a non-party witness to the events in the OR but that role is not one that activates the notice requirement.

You can call the carrier if you are worried but you will be told that there is nothing currently in this situation to warrant their involvement on your part.

The surgeon, though, should be in contact with their carrier because the likelihood of a lawsuit that may extend to cover them is, as you note, a realistic one.