Surgical Residents Vulnerable to Malpractice Claims

Diana Phillips

August 30, 2017

Most medical malpractice cases involving surgical residents focus on the perioperative medical knowledge and decision making of the surgical trainees, and junior residents, in particular, are especially vulnerable, a new study shows.

In a review of the US legal literature for malpractice cases involving surgical residents during a 10-year period, Cornelius A. Thiels, DO, from the Mayo Clinic in Rochester, Minnesota, and colleagues identified 87 malpractice cases citing direct involvement of a surgical intern, residents, or fellow, with nearly half of the cases resulting in a jury verdict or settlement in favor of the plaintiff.. The payouts for these cases, the researchers report in an article published online today in JAMA Surgery, range from $1852 to $32 million, with a median of $900,000.

From January 1, 2005, to January 1, 2015, 70% of the US malpractice claims involving surgical trainees (excluding infant-related obstetric and ophthalmologic procedures) arose from elective surgery cases. General surgery was the most common source of claims (54%), followed by orthopedics (21%), gynecologic surgery (13%), urologic surgery (5%), neurosurgery (5%), oral surgery (2%), and otolaryngology (1%).

The outcomes of patients in 67 of the 87 claims identified involved death or permanent disability, the authors report.

More than half (51%) of the claims cited nonoperative decision making errors and injuries, and most of the alleged errors occurred in the postoperative vs preoperative setting (64% vs 36%). Intraoperative errors and injuries were cited in 34 cases (39%), whereas both nonoperative decision-making errors or injuries and intraoperative errors or injuries were cited in 9 cases (10%).

In 10 cases, the malpractice claims alluded to situations in which the surgical resident made a decision or proceeded with care without evaluating the patient in person, including two cases in which residents prescribed or increased the dose of patients' postoperative pain medication before or instead of examining the patient, according to the authors.

Of the 10 cases involving claims of residents' failure to evaluate patients in person before making a decision, seven were decided in favor or the plaintiff and had disproportionately high payouts (median, $1,203,000).

Insufficient direct supervision by attending physicians was deemed a contributing factor in 48 of the malpractice claims. In 10 of these cases, "the attending physician's failure to appropriately supervise part of an operation in person was cited," the authors write. "Three cases claimed that intraoperative injuries were the result of residents becoming anatomically 'lost' without an attending physician present." All 10 cases resulted in a judgment in favor of the patient, they note.

Issues related to informed consent, documentation errors, and communication lapses were also cited in the claims.

Of 35 cases in which the residents' level of training was available through the literature search, 24 named a junior resident (postgraduate training year 1 or 2) in the claim and 11 named a senior resident (postgraduate training year 3 or higher). "Cases involving junior residents often heavily emphasized the novice training level of the resident during the testimonial," the authors write, noting also that most of the lawsuits in which junior residents were named cited issues related to medical decision-making in the claim.

The median time from injury to resolution of the lawsuit was 4 years, with 42 of the cases being decided in favor of the plaintiff. The extended duration "likely profoundly affected the involved surgical trainees in the beginning of their careers," the authors state.

Given the high number of claims citing medical decision-making errors, especially in the postoperative period, and insufficient supervision by attending physicians as contributing factors to the litigation, the current review "highlights the importance of perioperative management, particularly among junior residents, and appropriate supervision by attending physicians as targets for education on litigation prevention," Dr Thiels and colleagues continue. "These data should be used to inform surgical training programs on the importance of developing effective methods of faculty supervision and communication between residents and attending physicians in an effort to reduce the number of lawsuits involving trainees."

The findings also have implications for the emotional well-being of residents. "Physician burnout is independently associated with a recent malpractice suit, even when accounting for all personal and professional characteristics," the authors write. "Given that 69% of surgical trainees already meet criteria for burnout, it is critical that we better understand legal cases involving surgical trainees and how such cases can be avoided in the future."

The authors have disclosed no relevant financial relationships.

JAMA Surg. Published online August 30, 2017. Full text

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