Malpractice risk associated with surgical procedures
- Marsha Ryan, MD, JD, FACS
Marsha Ryan, MD, JD, FACS
- Adjunct Professor, School of Law
- Southern Illinois University
- Michele Mekel, JD, MHA, MBA
Michele Mekel, JD, MHA, MBA
- Adjunct Professor of Law
Medical malpractice actions are tort claims in which patients who feel that they received inadequate medical care can sue. The patient becomes the plaintiff, and the physician becomes the defendant.
Obstetricians/gynecologists and surgeons are most likely to be sued among all physicians. In one study, 85 percent of obstetricians/gynecologists, 83 percent of general surgeons, and 79 percent of orthopedists reported having been sued . In a given year, 15 percent of general surgeons, 19 percent of thoracic-cardiovascular surgeons, and 19 percent of neurosurgeons are named in malpractice suits . The majority of those suits, approximately 65 percent, are eventually dropped or dismissed, and 25 percent of cases are settled . Although only 10 percent of cases go to trial, the monetary, emotional, professional, and social tolls of malpractice actions are costly to the defendant surgeon.
Despite the frequency of suits and the maxim that lawsuits are merely a cost of doing business, it is nearly impossible to separate the surgeon's view of himself and his professional competence from the "assault" inherent in the legal process. The world of plaintiffs (who had just recently been patients), lawyers, insurance carriers, expert witnesses, legal doctrines, state and federal laws, and judicial application of law to the facts of the case can be intimidating.
Knowledge of a system otherwise so foreign to the surgeon may better prepare him or her to tolerate the idiosyncrasies of that system and, with heightened vigilance, may perhaps prevent entanglement in a lawsuit ab initio.
This topic will discuss the basic principles of medical malpractice law to provide guidance to surgeons who may be sued. Specific issues related to informed consent are discussed separately. (See "Informed procedural consent".)
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- BASIC PRINCIPLES
- Essential elements of negligence cases
- Qualifications of expert witnesses
- Cases that require no expert witness
- - Res ipsa loquitur
- - Admission of responsibility
- - Common knowledge
- - Informed consent
- PHYSICIAN-PATIENT RELATIONSHIP
- Requirements and exceptions
- Duties to third parties
- DERIVATIVE THEORIES OF LIABILITY
- Negligent infliction of emotional distress
- NOVEL THEORIES OF LIABILITY
- Fear of future injury
- Loss of chance of survival
- Standard defenses
- Other defenses
- - Good Samaritan acts
- - Statutes of limitations
- - Comparative negligence
- - Exculpatory clauses
- RECORDS, FRAUD, AND CONFIDENTIALITY
- Breach of confidentiality
- Concealment of errors and fraud
- SUGGESTIONS FOR THE SURGEON WHO IS SUED