Charles Carroll VI
David S. Wellman
The physician-patient relationship is an implied contract under law and serves as the foundation of the physician’s role in patient care. Thus, understanding the legal context of medicine is imperative for any practicing surgeon. Further, the litigious aspect of practicing medicine is continually on the rise; since 1975, malpractice costs have risen 11.5% annually, and the total costs of the malpractice system reached $29.4 billion in 2005. On average, an orthopaedic or hand surgeon can now expect to be a defendant in two lawsuits during his or her career.
Most medical-legal cases, including malpractice, personal injury, and workers’ compensation, fall under tort law. Tort law deals with civil wrongs that violate relationships bound by implied contract As the physician-patient relationship is a type of implied contract, negligence and breach of the implied contract fall under laws of tort, which are dictated by statutes and previous court opinions. In these cases, the role of the physician falls into two major categories: physician as defendant and physician as witness.
In the practice of medicine, physicians strive to be teachers and knowledgeable healers. We are taught to be caring and compassionate. We aim to please and heal. Unfortunately, we are not trained in medical school or residency to interface effectively with the law. After delivering appropriate care, we may be called to testify as a treating physician. Often this will be for a patient who has been injured and has filed litigation after the accident for payment of medical expenses and damages. An orthopaedist/hand surgeon/therapist may be called to recount our care, and we may be asked to offer opinions concerning permanent damages and causalty. We function as an expert in these situations based on our knowledge, experience, and training. The plaintiff or the defense may call us. In either case, we are functioning as an expert witness.
We may be asked to see a patient or review records for a law firm. This may be workers compensation matter or a personal injury claim and may involve the plaintiff or the defense. In this scenario, we are serving as a controlled expert witness.
Medical malpractice continues to be an important issue in the United States. Many states are in a form of crisis as claims continue to plague the practicing orthopaedist. Premiums continue to rise, and there is loss of practicing orthopaedists in some states. The cost of malpractice premiums continues to be of great concern. An important part of the malpractice process is the use of expert witnesses to establish the presence of an action that constitutes malpractice. Expert witnesses assess the presence of damages to the plaintiff/patient and can provide advice as to whether there has been a breach of the standard of care. The process of litigation in a state or Federal Court relies on expert witness testimony in the process of finding of facts. Physicians can and must play an important role as an impartial expert or as an expert in their own defense.
I. Physician as Defendant
The most stressful role a physician can play in the legal system is one of a defendant in a medical liability case.
Most lawsuits against physicians fit into three major categories: negligence, improper informed consent, or physician abandonment.
The most common claim against a physician is negligence, or not practicing according to the accepted standard of care. In a court of law, the standard of care is generally accepted as the “skill, knowledge, expertise, and experience” that a practicing physician in that specialty would possess and employ in a similar situation and location. While state law dictates the specific definition, every state has a similar interpretation. To successfully argue a negligence claim in court, a patient must prove that
The physician owed the patient a duty.
The physician breached the duty.
The breach led directly to injury.
The injury caused legally recognizable damages.
As discussed below, the patient must rely on other physicians to establish the elements of his or her claim.
Improper informed consent
Formal informed consent involves a discussion with the patient regarding the potential risks and benefits of the proposed procedure, alternative treatments available, and risks of refusing treatment. Legally, it is acceptable to provide a thorough, but not necessarily exhaustive, list of all complications that a reasonable person in a similar situation would consider important. If a physician performs a procedure according to the classic description and a recognized complication arises that was discussed during the informed consent phase of preoperative planning, the physician cannot be held liable in court.
A patient must be able to understand the information presented, be capable of decision making, and be allowed to make a decision voluntarily. While capacity to consent is a legal standard, physicians typically make decisions regarding the ability to consent. In a situation where determining competence is not straightforward, it is advisable to obtain physician consult for a second opinion. If the patient is determined to be incompetent, physicians should know their particular state’s laws regarding who can legally provide informed consent.
In a review study of malpractice cases claiming improper informed consent, Bhattacharyya et al. found the risk of malpractice claims was significantly increased if the informed consent discussion was performed on the wards or in the preoperative holding area. The study also concluded that malpractice claims were significantly decreased if documentation of the informed consent discussion existed in the office notes.
Physician abandonment claims arise when patient in need of treatment has care terminated by physician without proper notification or assistance in finding a new treating physician. A 1935 court ruling in Utah advises physicians to “give the patient sufficient notice so that the patient can procure other medical attention if he desires.” In orthopaedic and hand surgery, failure to provide proper follow-up is both a common claim citing abandonment and a leading cause for overall malpractice claims. Premature discharge from the hospital as well as improper discharge instructions also fall under abandonment. Proper and thorough documentation of discussions with patients
regarding follow-up, transfer of care, and termination of service is needed for defense against abandonment claims.
Preparing for role of defendant
Given the current litigious dynamic of practicing medicine, young physicians can assume they will be involved in at least one court case in their career, whether as witness or as defendant. Understanding the legal system is an important step in selfprotection as it aids the young physician to take steps in practice to guard against lawsuit and protect professional credibility when asked to serve as a witness.
As the burdens of malpractice suits include a major time commitment, an insult to professional integrity, and potential financial loss, it is prudent for physicians to employ proven strategies to reduce the likelihood of being sued.
The quality of the doctor/patient relationship has been shown to affect the prevalence of malpractice claims. At an administrative level, malpractice attorneys recommend returning telephone calls personally as well as reviewing test results and specific treatment recommendations directly with patients. This avoids the common complaints that patients have regarding the amount of personal interaction with their doctors. Offices should be arranged so that appointments are not overbooked and patients are not left frustrated in the waiting room.
Physicians should develop a plan on addressing mistakes and medical errors early in practice. Acknowledgement of error, as well as an appropriate apology, can be made without admission of liability. Prompt, honest disclosure may even reduce malpractice claims. The time spent formally addressing patients regarding mistakes is miniscule compared to the time spent preparing for a malpractice court case.
All office notes should be complete and legible, and all interactions with patients must be documented, both in the office and over the phone. The timing of documentation is also important: Operative reports completed months after the procedure suggest that certain pertinent facts about the case may have been forgotten. All changes to a note must be made so that the original is still legible, and corrections or changes to a note should not occur after a lawsuit has been filed. Plaintiff’s attorneys specifically seek this information and use it effectively to discredit defense counsel arguments. Good documentation habits from the onset of establishing a practice will eliminate the need for reactionary revisions in your documentation methods.
As doctors move to protect themselves from lawsuits, defensive practice behaviors have become more prevalent. A recent study analyzed the behavior of doctors practicing within certain high-risk fields (including orthopaedics) and found that 93% admit practicing defensive medicine. The majority of orthopaedic surgeons surveyed described ordering more tests than medically indicated in order to provide assurance. The study also found 57% of orthopaedic surgeons report avoiding caring for certain patient populations because of potential liability. These practices only add to the overall financial burden of the legal environment on the health care industry. Physicians must learn to practice comprehensive care without overburdening the health care system.
The most effective risk management tool is communication. Every orthopaedist and hand surgeon should take the time to develop and institute a program of effective communication with each patient. An effective communicator is an active listener who asks open-ended questions in a pleasant and nonjudgmental manner. A connection should be made with each patient. An effective physician will carefully assess the role of the disease process in the whole patient. With effective communication and teaching of the patient, one can practice good medicine and minimize malpractice claims. Strive to work as a team with each patient, and take a genuine interest in their problem. A patient who finds that their physician is interested, competent, and personable is less likely to sue their physician.
II. Physician as Witness
Both young and established physicians should familiarize themselves with the statutes of their home state, as they will likely be approached during their career to participate as a witness. Preparing for expert witness testimony involves close communication with the participating attorneys and an understanding of state law. As described in this chapter, state laws dictate specific aspects of testimony, and the physician will be expected to adhere to the particular state’s regulations.
As a defendant, one should be thorough in their review of the chart, hospital records, and any other applicable information. A pertinent review of the medical literature is essential. Be careful to consider any staff member who may have been present and may remember the case, as their testimony could be very helpful. Set the time aside for review and preparation. The depositions can be long. Trial testimony and watching the trial will be very stressful. Spend the time with attorneys and be ready for any occurrence. Rely on loved ones and family for mental support but maintain the privacy of the patient. Eat well, try to sleep, and exercise in preparation for the matter. Try to maintain a positive attitude, and move on mentally when it is over.
Physician as an expert witness
In many jurisdictions, court cases based on medical information above the level of understanding of the layperson require expert testimony. As a jury of laypeople decides liability for most medical-legal cases, they must become knowledgeable of the standard of care in each case. Thus, the parties rely on physicians outside the case to act as expert witnesses. Since professional journals and textbooks are rarely considered completely authoritative, a practicing physician is brought in to interpret the data and offer an opinion based on medical literature and his or her professional experience. Both plaintiffs and defendants are encouraged, expected, and often required to provide expert witness testimony to support their cases.