Jeffrey Segal, MD, JD

We continue with our series of articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran.  The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant.  Please give us your feedback – and let us know if you find the series helpful.

I am a surgeon in a small community hospital. 

I performed an endoscopic carpal tunnel release on a patient. I have performed hundreds, if not thousands, of such procedures. I am fully experienced in performing that procedure. 

After surgery, the patient described some residual complaints. I believed these would resolve with time. Rather than wait and see me for follow-up, the patient went to my competitor for a second opinion. 

This competitor told the patient I performed the surgery ineptly. He said that he needed to re-operate. I tried to dissuade my patient but he explained he now had little faith in my opinion. The patient transferred his care to my competitor.  The second surgery was consummated.

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Recently, a doctor treated his patient for erectile dysfunction and decreased sexual drive. The patient had multiple reasons explaining these two conditions. He was on a SSRI. He had a history of alcohol abuse. And several other medical issues. What was also clear was that he had low free testosterone levels for his age cohort; and he had clinical hypogonadism.

The doctor discussed treatment with exogenous testosterone. They discussed the risks, benefits, and options – including low sperm count and fertility issues. The patient said he understood and gave his blessing to proceed.

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An article recently published in New England Journal of Medicine studied video submissions of 20 experienced Michigan bariatric surgeons performing laparoscopic gastric bypass surgeries. The videos were rated in a blinded fashion according to surgical skill. The authors then assessed relationships between these skill ratings and risk-adjusted complication rates, using data from a prospective, externally audited, clinical-outcomes registry involving 10,343 patients.

The authors concluded that skill – as measured on videotape – varied widely. “Greater skill was associated with fewer postoperative complications and lower rates of reoperation, readmission, and visits to the emergency department.” In other words, the better the technical prowess, the better the outcome.

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Bear with me. This introduction is not about a doctor-patient interaction. But, it will illustrate a core principle on “best practices” in asking patients for feedback or reviews. Actually, it will illustrate “worst practices.

I went to upgrade a phone with my carrier; a carrier that shall not be named – but it rhymes with lint. I had interacted with this customer service rep previously; an interaction that ending in my spending two hours on the phone with customer support addressing charges that never should have been billed. What a time-waster.

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We continue with our series of articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran.  The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant.  Please give us your feedback – and let us know if you find the series helpful.

You made a mistake; not a harmless mistake.  You are, of course, obligated to reveal that clinical fact to the patient.

Frankly, you also feel terrible about it because you are a good doctor and care about your patients.

You now face the question of whether to actually offer an apology to your patient.

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Many years ago, I treated a patient for neck and arm pain. I removed his cervical disc. The procedure was uneventful, and by all measures, he should have returned back to work quickly. (Many years later, a surgeon removed a cervical disc fragment from me and I went back to work part-time the following day).  The patient, a postal worker, did not go back to work quickly. In fact he never went back to work at all. He said he was too weak to even lift a cup of coffee to his lips. He had zero objective neurologic deficits – and I was skeptical he was disabled.

Unbeknownst to me, this postal worker bragged to a fellow employee how he was scamming the system and would soon be collecting permanent disability paychecks — all courtesy of Uncle Sam. Did this new confidante succumb to envy? Hell no. He was a bigger person than that. He called his boss and a sting operation was birthed.

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Guest post by Michael M. Rosenblatt, DPM

Leonard Bernstein smoked cigarettes until his very last day. Pianist and composer Sergei Rachmaninoff smoked at least 2 packs/day and died of cancer.  It is astonishing how many pop/acting legends and entertainers fall into and die of self-destructive behaviors. It’s not an uncommon problem.

There are a number of reasons why you need to prepare yourself ahead of time to deal with self-destructive (SD) patients:

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Dr. Philip Leggett learned of a surprise. His patient, Vector Thorn, apparently had an axe to grind. Thorn was a web designer who purchased the domain name philiplegget.com (remarkably similar to the legitimate site drlegget.com).

On the bogus web site, Thorn used the surgeon’s logo and detailed his professional experience. He then added fictional patient comments and responses. Here’s a sampling. “Not so sudden death.” “Not my problem.” “Deal with it, Junkie.” “Kicked to the curb.”

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A sad case. A 39 year old woman had extensive plastic surgical procedures — a mommy makeover. This included breast lift, tummy tuck, and other procedures. She died two days later from what the coroner labeled a pulmonary embolism.

Now the lawsuit. The family’s plaintiff attorney alleged the patient was taking oral contraceptives. She was cleared for surgery by her internist.  Both her internist and plastic surgeon were aware of the oral contraceptives.

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We continue with our series of articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. In this article, the author addresses “Assumption of risk versus informed consent..” This attorney is a seasoned veteran.  The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant.  Please give us your feedback – and let us know if you find the series helpful.

“The patient signed a consent.  He understood the risks. Why can he sue me now??? Why can’t my lawyer just present the signed consent and get this case dismissed?”

You have probably heard it from colleagues.  You may have even asked it yourself.

The subtext is a reference to an affirmative defense (a defense the defendant must plead and prove) called “assumption of risk.”

What is assumption of risk as a legal defense?

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