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kc_podcast_2011_empathy

Unexpected Surgical Complication, Lack of Empathy Triggers a Lawsuit

By Kathy Dwyer, MSN, RN, CRICO

Related to: Communication, Disclosure + Apology, Informed Consent, Surgery


Description

A 52-year-old male underwent a laparoscopic adrenalectomy and sustained an injury to the inferior vena cava, which was recognized promptly and repaired successfully. The patient recovered from his injuries and filed a lawsuit, partly due to his perception that the surgeon failed to adequately explain the risks, lacked empathy, and was unwilling to fully explain what happened.

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Key Lessons

  • Minimally invasive surgery does not always translate into minimal side effects.
  • Treating patients as partners, by way of engaging them in a dialogue, is vital to a productive provider-patient relationship.
  • Asking for help in a crisis should be encouraged as part of a team culture in clinical care
  • Take a patient’s lifestyle into consideration when communicating about potential or real adverse clinical outcomes of a procedure.
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Clinical Sequence

A 52-year-old insurance executive with a physically active lifestyle and a 20-year history of hypertension that was difficult to control was referred to a surgeon, after a CT scan revealed a right adrenal mass (~4 cm). The surgeon recommended a laparoscopic adrenalectomy to remove the mass. The patient recalled that he was advised that laparoscopic surgery was less invasive and the recovery “would be quicker.” The consent form that he signed indicated that he was also told that on rare occasions it might not be possible to do this procedure laparoscopically, and a slightly larger incision would be required, necessitating a longer hospital stay.

During surgery significant bleeding developed. It looked like the bleeding was coming from the vena cava. The operation was converted to an open procedure, and the surgeon called for assistance from another attending surgeon. According to the operative report, the adrenal mass was fairly large (>4 cm) and was located “in the very superior position underneath the liver and medially underneath the vena cava – very difficult location.” The bleeding was controlled, and the dissection of the right adrenal mass was accomplished without further complication. The patient received three units of blood. The surgeon did not see the injury occur, but thought it was due to a small avulsion injury or the blocking off of a small tributary.

In the recovery room, the patient’s wife recalled the surgeon telling her that “we hit the vena cava, and there was a lot of bleeding.” She remembered that the surgeon’s scrubs were covered in blood. After their conversation, she went home and looked up ‘vena cava’ on the Internet.

The patient woke up the next day in the intensive care unit on a respirator. He asked his nurse what happened, since this was not what he expected. She told him that there was an emergency in the operating room and that he would have to speak with his surgeon.

After recovery in the intensive care unit and on the surgical floor, the patient went home eight days after surgery. The record reflects one postoperative visit by the attending surgeon, with the notation for the patient to “call if any problems.” The patient and his wife felt that the surgeon was not forthcoming with an explanation of what happened and seemed indifferent to the impact on his patient.

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Allegation

The patient sued his surgeon, alleging negligence in the performance of the laparoscopic adrenalectomy, resulting in a prolonged recovery, delayed return to work, a 24-inch scar (instead of 3-5 inch scar), and persistent rib pain that interfered with his active lifestyle. The plaintiff also alleged that the surgeon failed to disclose significant risks of the procedure, thus preventing the patient from making an informed decision about whether to proceed with a laparoscopic adrenalectomy or an open procedure.

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Analysis

Clinical Perspective

  1. Asking for help should not be considered a sign of weakness. Good surgeons do not hesitate when assistance is needed. In addition, research shows that well-trained personnel only remember some of what needs to be done in an OR emergency. An emergency checklist for quick review by allied OR personnel should be strongly considered.
    Asking for help should not be considered a sign of weakness. Good surgeons do not hesitate when assistance is needed. In addition, research shows that well-trained personnel only remember some of what needs to be done in an OR emergency. An emergency checklist for quick review by allied OR personnel should be strongly considered.

Patient Perspective

  1. The patient thought he would have surgery that was a “walk in the park,” because that is what he remembers his surgeon telling him, and because that was his friend’s experience.
    Despite the exact words from a surgeon, it is what the patient hears that matters most, reflecting the doctor’s general attitude and tone. Laparoscopic surgery has advantages, but setting realistic expectations is key. Laparoscopic surgery is a major operation, even though it is done through a small incision. It is not uncommon for a patient to be influenced by experiences of a friend or family member who recently underwent a procedure. If your patient’s situation is different or more complex than his or her friend, it is important to ensure that your patient and your patient’s family understand why his or her situation is different. Realistically guiding the patient and family expectations begins at the start of your relationship, and serves as a buffer when things do not go as planned. The best way to do this is to engage the patient in a meaningful dialogue.
  2. The surgeon did not communicate clearly with the patient and his family immediately after surgery and minimized the problem, which communicated apathy.
    At times it can be difficult to determine whether the outcome the patient experienced is the result of a known risk of medical care (complication) or the result of a medical error. Whether or not there is “blame” to accept, what matters most is spending time with the patient and family and having an accurate, direct, and honest discussion from the beginning. Nearly every provider feels empathy, but they must express it, with an openness to hearing concerns. It is very important to know your patient and their lifestyle, because possible surgical complications affect every patient’s life differently. This knowledge is valuable when conveying any “bad news” that will affect them, even temporarily, in such ways as lost work or reduced activity. Discuss next steps, and consider scheduling a follow up meeting. Physicians and nurses usually should not handle these conversations alone. Consider advice from a peer/coach, a risk manager, or your medical malpractice insurer.

Risk Management Perspective

  1. The informed consent process was reduced to nothing more than a “to-do,” simply getting a signature on a form.
    Informed consent is about forging a relationship with a patient – having one or more meaningful conversations. Partnering with the patient is essential, and trust is an important part of that. That trust is built, in part, from the kind of difficult conversations that can arise about issues that both parties do not necessarily want to address. Invite patients to participate in the decision-making process of care. It is the right thing to do, and is your best protection against a lawsuit if the outcome is less than optimal.

Legal Defense Perspective

  1. Due to supportive expert reviews, the case went to trial and the jury returned a verdict in the surgeon’s favor. At the conclusion of the trial, the patient’s wife approached defense counsel and provided him with a copy of an article, requesting that counsel provide it to the surgeon. The article discussed communication between physicians and patients and the importance of an apology following an adverse event.
    The jurors agreed with the defense argument that the surgeon met the standard of care, recognized the complication, and moved very quickly to repair it. Yet a successful legal defense can be small comfort, when better communication before and after an adverse outcome may have prevented the ordeal of a malpractice claim for the provider and the patient.
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June 24, 2010
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