William D. Kennedy, JD, and Dimitrios Stefanidis, MD, PhD, FACS, FASMBS, FSSH
June 1, 2021
The physician litigation not foreign to the United States. In 2019, approximately 25,000 patients (and their lawyers) presented new claims or lawsuits; some will be dismissed (as to some or all health care providers), others will be settled, and less than 250 will go through trial all the way to verdict. While most litigation cases involve practicing surgeons, resident physicians are not immune to litigation; they are identified as "defendants" in less than 10 percent of the cases, but their professional care may be at-issue much more often.
Although very few surgery-related cases that involve residents enter the legal system, it is imperative for residents to understand the factors that lead to litigation and what they can do to minimize their risk. In this article, we will provide an overview of tort law and address what residents need to know to avoid being named in a lawsuit.
Personal injury law varies by state, but in general, patients can succeed against health care providers only where they prove that a provider breached the legal standard of care, and that the breach caused injury (for example, pain, subsequent medical care, reduced capacities, and/or diminished earnings). In some circumstances, patients can also claim negligent care increased their risk of experiencing harm. Plaintiffs must prove their case by a "preponderance of the evidence"—a legal standard well below the criminal, "beyond a reasonable doubt" standard. Some states have dollar limits for a plaintiff's recovery.
There is no definitive, uniform definition of the legal standard of care imposed on surgical residents as compared to more senior fellows, supervisors, and attendings. In some states, surgical residents are held to a sliding scale commensurate with their professional development. In other states, surgical residents are held to the higher standard of a specialist. At a minimum, surgical residents need to exercise the same skill, care, and judgment normally used by similarly qualified physicians in similar circumstances.
Patients who retain personal injury attorneys do so after unexpected, poor outcomes with significant consequences. Patients are more likely to seek legal counsel if they perceive their provider as rude, inattentive, or incommunicative. Often, patients engage lawyers where they perceive a need for information and an understanding about what happened and why. A thorough, understandable explanation and some kindness go a long way in buttressing a patient's confidence in their doctors—even after an unexpected outcome.
Plaintiff lawyers' work on a contingent percentage, receiving nothing if they don't recover, but taking up to 40 percent of any settlement. In that sense, plaintiff lawyers are investors in their clients' cases. They do not typically pursue the doctor's assets, but rather money from professional liability insurers. Most claims against surgical residents also involve the rest of the surgical team (more senior residents or fellows, attendings, nurses, and the hospital) and, sometimes, the makers of intraoperative equipment.
Professional liability insurance covers the costs of hiring defense attorneys, medical experts, litigation expenses, and any settlement that might be reached. Typically, hospitals provide occurrence-based liability insurance for all claims arising from the resident's employment, regardless of when the claim initially asserted. Still, some insurers issue claims-made policies that cover claims asserted during a specific time period, regardless of when the care was rendered; this means that residents are covered during their training but not after they leave their training program if a lawsuit is filed then. Residents covered by claims-made policies will want to explore tail coverage to provide liability insurance for claims or suits arising after the expiration of the coverage period (i.e., after graduation from training).
The liability insurer hires lawyers to defend health care providers; it also pays any settlements or verdicts up to the limits of coverage, the amount of which is typically specified by law or regulation. Defense lawyers never represent plaintiffs; their main focus is on the client-physician even though they also report to and engage with the insurer about all factual and legal issues that could affect the outcome. Defense lawyers spend time with the physician to understand what and why it happened. Within the safe sanctum of the attorney-client privilege, they explore the physician's greatest concerns about the case.
Pretrial pleadings and discovery phases can stretch from months to years as the issues-in-dispute are narrowed, pretrial testimonial depositions are taken, and experts are paid for their opinions about liability, causation, and injury issues. Most insurers prefer to settle cases where they think a jury would conclude that despite someone's best efforts, the standard of care was not met. Settlements can occur at any time, but most come during the latter part of the litigation calendar when all the evidence is patent. Professional mediators and trial judges can be helpful in crafting settlements.
After an unexpected occurrence or complication, the single most important focus of the resident should be the well-being of the patient. If a "mistake" or "unwanted development" can be remediated, the resident should do so in the safest, most beneficial manner. The next step should be to accurately record in the patient's chart the factual details of what happened, without drawing premature conclusions or casting blame on others. If your perception of what happened differs from a colleague, compose your entry without opinion or finger-pointing because most initial impressions are incomplete, and patient care events may become much clearer later, when all the records and memories are available. It is imperative to note that while later additions to the chart are acceptable and may be necessary, the resident should never delete or alter an existing record after the fact. The resident should keep in mind that in the current era of electronic health care records all entries are recorded and time stamped so any record alterations will be easily demonstrated during litigation.
Accurate patient communication is essential. The resident should explain to their patient what happened, without drifting into suppositions about how the outcome might have been avoided or who—if anyone—was "at fault." Some states have apology laws that render inadmissible any expression of regret or sorrow by a physician. If your state has none, you still can—and often should—express your sympathy for what a patient will have to go through. An expression of "I'm sorry this happened to you; we're going to do all we can" will likely be both genuine and helpful but should also be accompanied by a chart entry that reflects this communication: "I expressed to [the patient] how sorry I am that she is experiencing [the outcome]." The resident should not worry about what a personal injury lawyer might say about such communication and remember that they will have their own experienced attorney dedicated to defending them and explaining "what happened" and "why." It is extremely important to note, that all communication with the patient about the occurrence should be coordinated among team members; if a resident tells the patient one thing and the attending or other team members another, this will erode the trust of the patient and will increase the likelihood of a litigation. To avoid this issue, a resident should discuss the occurrence with their attending and other involved team members, so they are all on the same page.
While attendings may need to notify their private liability insurer of an unexpected outcome, residents employed by a hospital or health system may want (or be asked) to consult with the hospital's risk management professionals; if so, bearing in mind that such communications are not entirely privileged in subsequent legal proceedings, the resident can describe what happened without criticizing others. If the event requires some manner of peer review or reporting under your state's sentinel event directive—and the risk management professionals inform you about that—then your accounts should be the same as they are in the chart: honest, accurate, and nonjudgmental.
Strict compliance with the highest standards of practice is the best way to reduce the probability of patient litigation. The ever-evolving medical standard of care reflects what is being taught, what has been reported in peer-reviewed publications, and pronouncements by medical societies, boards, The Joint Commission, governmental and regulatory bodies, and the policies, procedures, practices, and protocols of individual hospitals and practice groups. Accurate charting aids patient care and reduces the risk of unanswerable questions. Operative notes and reports that record the important details of what happened and when can provide patients with clarity, and, sometimes, dissuade plaintiff-lawyers from pursuing the patient's claims.
Obtaining and properly documenting a surgical patient's informed consent for surgery is required in some form by every state's law (statute, regulation, or common law), and builds-in a potential defense that might discourage patient litigation. That a patient was informed of a potential adverse risk does not immunize a surgeon for an intraoperative breach of the standard of care, but it can excuse non-negligent outcomes. The way surgeons engage with patients after an unexpected outcome matters greatly. Good, direct engagement and clear communication about what occurred instills a level of confidence that may overcome a suboptimal surgical result or complication.
Residents can, thus, reduce their litigation risk by strict adherence to the standard of care, accurate documentation, and by the humanity with which they engage patients and their families.
Complications—and even outright, albeit unintended, errors—are part of every resident's learning curve and maturation as a practicing physician. When they occur, they can have devastating results on the psyche of the resident physician. Surgeons and surgical trainees have chosen their profession to help their patients overcome their diseases and are used to dramatic improvements in the quality of life of their patients as a direct result of their intervention. Surgical complications that are part of the practice of surgery, however, can reverse the euphoria associated with the practice of surgery and may lead to thoughts of incompetence and self-doubt but also feelings of grief, guilt, humiliation, and, sometimes, frank depression. While the psychological consequences complications have on the surgeon and surgical trainee have been poorly explored, there is no question every surgeon is affected to some degree by them. Litigation can greatly exacerbate such thoughts and feelings because it makes the issue public and carries with it the fear of punishment. Physicians may be left feeling helpless or hopeless. The prolonged duration of a typical litigation further compounds this problem. Therefore, it is paramount that any resident who finds themselves under litigation should take some steps to diminish the negative psychological impact on their mental health. We suggest the resident's focus should not be on self-blame, but rather on what they can learn from this experience and how they can better care for the next patient. The morbidity and mortality conference most training programs participate in often addresses this need if conducted using a blame-free approach. In addition, residents should consult with their attending surgeons and their program directors, to discuss lessons learned and what they should do differently in the future. Although such conversations are not legally privileged, they can be essential to the resident's professional growth.
You can't be good to a patient, practice, service, or hospital when you haven't taken good physical and mental care of yourself. After a negative, unexpected outcome—whether from a medical mistake or any other cause—do not ignore your well-being. Do not keep the feelings and thoughts to yourself but rather reach out to your residency program officials and risk management professionals who can point you to helpful resources.
William Kennedy, JD, is a professional liability defense and health law attorney with White and Williams, LLP, a Philadelphia-based firm with offices throughout the Northeast. He also serves on the Board of Directors of the Institute for Surgical Excellence and a local continuing care retirement community. He can be reached at firstname.lastname@example.org.
Dimitrios Stefanidis, MD, PhD, FACS, FASMBS, FSSH, is the vice chair of education and chief of minimally invasive and bariatric surgery at the department of surgery at Indiana University School of Medicine. He also serves on the board of directors of the Association for Surgical Education, the Society of American Gastrointestinal and Endoscopic Surgeons, and the Institute for Surgical Excellence. He can be reached at email@example.com.