A recent malpractice case highlighted an increasingly common mistake that physicians are making: badmouthing other physicians. In this case, a knee replacement patient, who had had several previous knee surgeries, experienced postoperative stiffness. Prior to consenting for manipulation under anesthesia, the patient visited another orthopaedic surgeon for a second opinion.

The patient’s deposition reported that the second-opinion physician remarked that he “could not believe that the treating surgeon had used such a thick (16-mm) component.” The second opinion-surgeon also commented that he “commonly used a continuous passive motion machine to avoid stiffness.” Although the care provided by the first surgeon was exemplary, the comments by the second surgeon ultimately led the patient to file a lawsuit.

Given an opportunity to evaluate the efforts of another surgeon when patients seek a second opinion or decide to switch providers, many orthopaedists may be quick to criticize, as in the following example:

A patient undergoes anterior cruciate ligament reconstruction. Two years later, laxity persists. The subsequent treating surgeon comments that tunnel placement was the cause. The patient decides to sue the physician who performed the reconstruction procedure. Of course, recurrent laxity has many causes, and although tunnel placement is critical, it is far from the only cause. At trial, the expert witnesses debated whether the tunnel placement was in error and led to the recurrent laxity.

Despite frequent reminders during orthopedic training and from professional organizations to emphasize professionalism and respect, doctors are often too quick to assign blame, whether consciously or subliminally. Although we as physicians do have an obligation to be truthful and fair to our patients, we do not have an obligation to blame our colleagues or to be critical of others’ work.

A recent study revealed that, despite efforts to instill the concepts of professionalism and shared responsibility in physicians, the tendency to criticize the efforts of other physicians persists. In this study, trained actors portrayed patients with advanced lung cancer. These “patients” had recently moved to town after being treated elsewhere. They carried medical records that reflected accepted standards of care. They made 35 visits to a range of primary care and specialist physicians.

The actors were instructed not to ask for opinions about previous care. However, a review of transcripts from the office visits found that in 40 percent of the visits, physicians commented on the previous care anyway. One third of the comments about previous care were positive, but well over half were extremely critical. One physician said of the previous provider, “This guy’s an idiot.”

Are you guilty?
How many of us can plead “not guilty” in assailing other physicians? Even an innocuous comment such as “I wouldn’t have done that” or “What was your doctor thinking?” can lead to medical-legal consequences. Based on the results of one study, 54 percent of lawsuits were filed in part because of the comments of a physician.

Consider the case of a hip replacement patient in whom drainage develops 2 weeks after surgery. Efforts at local wound treatment, irrigation and débridement, and antibiotic therapy are unsuccessful, and the patient is referred to a tertiary center. The accepting physician remarks that the patient should have been referred earlier or should have had the index procedure at the tertiary facility—and that was enough to trigger a lawsuit.

Critical comments about care may be based on incomplete knowledge of the facts or simply because the treating physician is unaware of the possibility that the patient may misunderstand the remarks. Although the criticism may be unintended or off-handed, it can lead to litigation. The price for defending against these types of allegations can exceed $100,000 and place considerable stress on the defending physician.

Patients are increasingly aware of the potential for big paydays, and the Internet is rife with stories about what constitutes ideal care. Criticizing another physician’s care leads to increasing distrust within the medical profession and can create a concept of injury when no injury actually exists.

Even worse than commenting on care during a patient visit is documenting it in the medical record. In one case, a physician wrote in the patient’s chart that the wrong treatment and wrong medication had been given.

As one plaintiff’s attorney described it, criticizing prior care is a gift of the highest order. Even if the treating physician disagrees with the previous treatment, he or she is under no obligation to comment on that treatment. Even asking “Who did that to you?” may signal the patient that the physician believes something wrong was done.

Not all physicians will agree with the same course of care for a patient. But when a patient asks “Why do you think my doctor did that?” the response should be “You will have to ask him,” not “He clearly didn’t have a clue of what to do.”

Physicians should avoid answering questions like “Why did my doctor do that?” Nor should they make statements such as, “What kind of doctor would have done this?” Subjective comments do not belong in the medical records. Remember that medical records are the news, not the editorial page. Although mistakes should not be covered up, physicians should remember the golden rule of “Do unto others as you would have them do unto you,” and the admonition “Judge not, lest ye be judged.”

Thomas B. Fleeter, MD, chairs the AAOS Medical Liability Committee. Theodore J. Clark, MD, is the chief executive officer of COPIC, a physician-directed medical liability insurance company in Colorado. S. Jay Jayasankar, MD, has served on the AAOS Medical Liability Committee.

Editor’s Note: Articles labeled Orthopaedic Risk Manager (ORM) are presented by the Medical Liability Committee under the direction of David H. Sohn, JD, MD, ORM editor.

Articles are provided for general information and are not legal advice; for legal advice, consult a qualified professional.

Email your comments to feedback-orm@aaos.org or contact this issue’s contributors directly.

AAOS Standards of Professionalism
AAOS fellows and members who make unfounded critical remarks about the care provided to a patient by another AAOS fellow or member may be violating the AAOS Standards of Professionalism (SOP) and potentially making themselves the subject of a disciplinary action under the Professional Compliance Program.

Mandatory standards under the SOP on Professional Relationships include the following:

1. An orthopaedic surgeon shall maintain fairness, respect, and appropriate confidentiality in relationships with colleagues and other healthcare professionals. An orthopaedic surgeon shall communicate in a manner that enhances the profession.
2. An orthopaedic surgeon shall conduct himself or herself in a professional manner in interactions with colleagues or other healthcare professionals.
3. An orthopaedic surgeon shall work collaboratively with colleagues and other healthcare providers to reduce medical errors, increase patient safety, and optimize the outcomes of patient care.

The SOP on Expert Witness Opinion and Testimony cover expert opinions, oral or written, in legal or administrative proceedings. The SOP apply to opinions given in written reports, signed certificates or affidavits of merit, or sworn testimony. AAOS fellows and members are required to be fair and impartial, to not provide false testimony or opinions, and to “neither condemn performance that falls within generally accepted practice standards nor endorse or condone performance that falls outside these standards.”

In addition, an AAOS fellow or member serving as an expert witness shall “seek and review all pertinent medical records and applicable legal documents, including relevant prior depositions, before rendering any statement or opinion on the medical or surgical management of the patient” and shall be prepared to explain the basis of their opinions and support them by experience or specific clinical and/or scientific evidence.

For more information on the AAOS Professional Compliance Program, visit www.aaos.org/profcomp

References:

1. Chen, P: Doctors Badmouthing Other Doctors. The New York Times, July 11, 2013. http://well.blogs.nytimes.com/2013/07/11/doctors-badmouthing-other-doctors/?_r=0 (Accessed Oct. 30, 2013)
2. Hickson, GB, Clayton EW, Githens PB, Sloan FA: Factors that Prompted Families to File Medical Malpractice Claims Following Perinatal Injuries. JAMA1992 Mar 11;267(10):1359-63.
3. Synder L, for the American College of Physicians Ethics, Professionalism, and Human Rights Committee: American College of Physicians Ethics Manual, Sixth Edition. Ann Intern Med 2012 Jan 3;156(1 Pt 2):73-104. doi: 10.7326/0003-4819-156-1-201201031-00001.
4. ProAssurance Medical Risk Management Advisor, Fourth Qtr 2003, Volume 11, Issue 4.