By Jeff Varnell, MD, FACS
Analyzing a medical liability claim
Editor’s Note: Articles labeled Orthopaedic Risk Manager are presented by the Medical Liability Committee under the direction of contributing editor S. Jay Jayasankar, MD.
Articles are provided for general information and are not legal advice; for legal advice, consult a qualified professional.
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One of the basic tenets of medical risk management is understanding the differences between the sources of a lawsuit and the sources of a medical error. The analysis of a claim should take into account those factors that help decide the legal defense of that claim, but the analysis of the event should yield an understanding of the factors that led to the error and strategies for preventing future mishaps.
The divergent paths taken by a claim analysis and an event analysis can be seen through the following example:
Dr. Jones performed a posterior cruciate ligament repair on a 24-year-old male. Even though the guard to protect the popliteal space vessels was available in the instrument set, the surgeon proceeded without it. The repair went well, aside from a brief episode of bright red bleeding when the cuff was let down. In the recovery room, the distal pulses in the involved leg were noted to be diminished; after Doppler ultrasound auscultation, the change was attributed to spasm.
On the first postoperative day, Dr. Jones’ partner saw the patient, noted the diminished distal pulse, and elected to wait until Dr. Jones would see the patient on the following day. On the second postoperative day, the patient’s foot was cool and pallid; an arteriogram revealed a popliteal artery injury. Despite aggressive reconstructive efforts, the patient eventually had a below-the-knee amputation. Several months later, the patient filed a lawsuit against Dr. Jones and his associate.
The legal analysis of the claim
In this case, the legal analysis must determine whether a duty to the patient existed (it did), whether damages existed (amputation), whether the physicians’ actions or lack thereof caused the alleged damages (likely), and whether negligence was shown (did care fall below the “standard”?).
The occurrence of a complication such as injury to a major vessel is not per se evidence of negligence. Certain factors, however, should be taken into account in making that judgment, including whether adequate indication for the procedure was established and documented, whether an adequate informed consent process was implemented and also documented, whether known preventive measures were taken, and whether the complication was recognized in a timely fashion and appropriate rescue measures attempted.
In this case, subsequent discovery showed deficiencies in most of those areas, especially in the delay in recognizing the arterial injury, which compromised the success of the subsequent vascular reconstruction. No experts were willing to state that the care fell within the standard, and the case was thus settled prior to trial.
The patient safety perspective
Analyzing this case from a safety perspective yields several opportunities for subsequent change. It is useful to evaluate these opportunities within a framework that can suggest concrete interventions. One such paradigm looks at patient management, systems analysis, communication models, and documentation efforts.
Expert review of the case suggested that the physician’s judgment may have been compromised in the indications for performing the surgery and in ascribing the diminished pulses to spasm rather than pursuing further investigation. The transfer of care to the covering partner involved communication failure, because the partner was unaware that the diminished pulses were a new postoperative finding and that there had been an intraoperative concern around some bleeding.
In addition, the floor nurses had not been able to notify the on-call physician when the patient’s pain increased on the first postoperative day; the answering service had a system failure—not for the first time—that had not been adequately addressed.
Finally, documentation of the physical exam done in the recovery room by the attending physician regarding the patient’s pedal pulses and the Doppler findings was unclear and inadequate. The result was a “domino effect,” which frequently results in an unexpected outcome.
The lessons learned
What can be done to minimize the causes of these various failures? In the patient management arena, the surgeon did not have a knowledge deficit that led to the judgment lapses. But cognitive errors often are precipitated by other factors that may affect the ability to exercise good judgment, such as fatigue, time pressure, distractions, production pressures, and fear of compromise of professional reputation. Proactive measures must be taken to limit these factors, starting with the recognition that they can inhibit a surgeon’s effectiveness as a safe provider. Serious consideration should be given both to the facility used for the surgery and to the indications for recommending it.
A proactive approach must also be taken to improve communication among providers. Handoffs between partners or other covering physicians should be formalized and should use checklists and standardized communication styles and times to maximize information transfer. A handoff should be accomplished directly, preferably face-to-face, so that all of the important information is transferred and the receiver can ask questions.
In addition, nurses should be encouraged to call the physician with any questions about a patient’s condition, rather than be chastised, belittled, or mocked, which would discourage them from calling the next time.
Medical care is filled with both large and small systems, and it is incumbent upon healthcare providers to understand how those systems work and continually seek performance improvements. If the answering service has problems receiving or sending out messages, it should be evaluated and problems fixed immediately before patient care is compromised. If the preoperative checklist is not functioning smoothly, it should be continuously modified until it works.
Finally, efforts at improving documentation should reflect the reality that accurate records not only help show that appropriate care was delivered, despite an unfortunate outcome, but also help convey critical information about the patient to other providers. An appropriate informed consent must be included, with specific mention of the risks of injury to structures in the area, such as the popliteal artery, vein, and relevant nerves.
The opportunity to analyze these sentinel events, both from the liability and patient safety standpoints, enables the application of lessons learned to the care of future patients. Such analyses also achieve the goals of medical risk management: reducing the rate of medical errors, mitigating the effects of these errors on patients, and helping to defend appropriate care in the event of an unavoidable adverse outcome.
Jeff Varnell, MD, FACS, is a physician risk manager with COPIC Insurance. He can be reached at firstname.lastname@example.org