I think it was W.C. Fields who says, I don't work with children or animal acts. I guess we can add that to Mike Scott. Anyhow, we'll try to go over from a little different perspective with similar themes about medical malpractice and some of the things that I've gleaned over time. Now, whenever we give a presentation, we always start by talking about our series. Well, this is my series. Over the course of nearly 35 years, I've had 19 malpractice suits initiated where I am one of the people named. The first one was when I was a resident, and it's gone on from there. Seven were ultimately dropped by the plaintiff's attorney during the discovery process, where they take depositions and look at information, where they realized there was no merit or they had very little likelihood of winning. Three were dismissed by summary judgment. That is where your lawyer goes to the court and says, there's no merit to this. These are affidavits by experts. Remember, an expert is different than the lawyer. The lawyer's an advocate. He's the rah-rah guy for his client, and the medical expert's supposed to be an impartial teacher of facts. Five of them were settled by the hospital for economic reasons, but in all five cases, the several physicians who were named were dropped out of the suit. Four of the four went to trial, and all four were verdicts in my favor. There was one settlement that was done before filing a malpractice suit, and we'll talk about that in a minute, and I was assigned the 10 percent responsibility as a captain of the ship. And then I have served as an expert reviewer, a witness of fact over the years. I've always limited the amount of malpractice review I do, so it would never go above an arbitrary figure that I sent as 3 percent of my income, and it averages about one deposition a year and one trial testimony a year. I also have made it a practice that when I'm asked to testify involving my own patients, usually as a witness of fact, there is no fee for that, although you are entitled to that under the law. So things have gotten better in malpractice over the years. This is the first codified description of punishment for malpractice, it's the Code of Hammurabi from about 4,000 years ago, and basically if we did wrong, our hands would be cut off. So things have moved forward, there has been some degree of malpractice reform. But when you look at the legal definition, and for the next few minutes I'm going to try to approach this as if I was a lawyer trying to educate a series of doctors about what my thinking is. So malpractice occurs when there's been negligence or omission that causes an injury, and it can be the result of a number of different factors, diagnosis, treatment, aftercare, or overall management. The challenge for us as physicians is, this is completely unfamiliar to our way of thinking. The legal profession is adversarial, as I said a moment ago. You have two sets of advocates, it's like a football game, they're going head to head at each other, and someone is going to win. When we look at our patient care, we want our patients to do well, but in general we don't treat it as a combat sport. In contrast, the physicians who are involved are basically there in one of three roles. We can be the defendant, we can be the witness of fact that is testifying about what we have done for our patient who is suing someone else, or we can be an expert. And again, I think it's very critical for any of you who have ever acted as experts or intend to act as experts, you are not there to be an advocate for the patient, be it defendant or plaintiff. Your job is to look at the medicine and to the best of your ability and judgment to interpret what you think has happened to the lay jury that's going to make this judgment. You're not an advocate, you're a teacher of facts. The legal elements of malpractice really come to four factors, duty, breach, causation, and damages. We as physicians have a legal duty to our patients once we take them under our care. To that degree, if we do not carry out our duty to them sufficiently and appropriately, that's considered a breach. If that breach then causes injury, that's our fault, that's negligence. But the injury alone is not what has to happen, there also has to be a significant damage. That is, a patient can have a temporary injury, make a complete recovery, have no significant damage at the time or afterwards, and that would not qualify as malpractice. Bad outcomes are not malpractice. Everything we do carries the potential for hurting people. We are in a profession that basically glorifies our ability to hurt people and then make them better again. Everyone hears about the standard of care, and the standard of care basically says, what would a reasonable person, in this case a reasonable physician, do, and what would a reasonable person, that is a patient, expect from their physician? An injury that is caused by negligence, that is a failure to exercise the care, the judgment, and the restraint that would be expected by a reasonable physician or a reasonable patient, is the key of what would create malpractice. And the injury that you cause has to result in significant damages. Damages are really a two-fold concept. Damages are that the patient has suffered something, and damages mean there's some way of sticking a monetary value to this. I don't think any of us think when our patients are hurt or have a complication or a side effect that we think of it in a monetary fashion. We think of it as a quality of life issue, as a deficit, but that's not the legal definition. The legal definition is, what is the monetary value of what we've done to the patient? And lawsuits, believe it or not, particularly neurosurgical lawsuits, are rarely brought for frivolous reasons. It is expensive for the plaintiff's attorney. They don't get money up front, they're on a contingency fee. And just the initial discovery before they even get to the trial or settlement can be several hundred thousand dollars. So you're not out there that every time a patient has a stitch burst open, or every time you have a superficial wound infection, you are likely to be sued, because these would be frivolous, and it would not end up with significant personal, emotional, or economic damages. There are basically four or five theories within the legal framework of malpractice. And again, we don't think of theories in terms of what happened to our patient. We think about how we cared for them, what our results were, why there was a complication, was the complication avoidable? But within law, they have four or five concepts, hypotheses, that almost all lawsuits will fall under. The first is a lack of due care, negligence, as we talked about a moment ago. The second is a lack of informed consent. And if we do something to a patient without informed consent, that is the legal definition of battery. Same thing as if you went to a bar and someone punched you for no reason. The third is we are responsible for vicarious liability. As Mike was talking a few minutes ago, if a house officer, a nurse practitioner, a junior resident, another service that is caring for the patient who is admitted under your name does an act that is negligent, we have responsibility. We are the captain of the ship. There can be an injury to third parties, which is really an issue that we deal with. This is more when they're dealing with things like loss of income from a spouse, loss of familial relations with a spouse, very nondescript term. An abandonment, abandoning the care of a patient or a patient saying that an act was carried out, he believed in his physician, but then that physician abandoned them is not just an emotional abandonment, it is actually a breach of our duty to the patient and the legal theory for why lawsuits go forward. My own concept, having been a defendant, having settled the case, and having been an expert witness and having reviewed this, is that it's very rare that a single error causes a malpractice suit, particularly in pediatric neurosurgery. Malpractice suits generally come from systemic failure. There are multiple opportunities to have retrieved a good outcome from the brink of disaster. It's usually a cascade of events when you look at what happens, and I think the cases that Mike presented to us a few minutes ago really demonstrated that very well. It wasn't a single instance. It wasn't an operation. It wasn't a slip of the knife. It was a cascade of events, and each one led to further injury or further sense of abandonment by the family. Lack of documentation of clinical judgment. Judgment is probably the number one thing that we use to defend ourselves, because if we use good judgment, if we document good judgment, then by definition we're not giving negligent care. Poor communication is a theme that I see over and over again, and documentation of that communication, if it's good. Do you document the use of translators? Do you document the time you spend in discussion? Do you document explanations of events or what you're about to do? Just like Mike's last cases, poor communication, poor communication with other care providers. I don't communicate with the pediatrician who's covering the ward. My nurse practitioner doesn't communicate with my resident who doesn't communicate with the PICU resident. The residents don't inform the NPs and the PAs. It is a failure to kick the problem up the chain of command. You know, the entire concept of checklists we do on a daily basis is to eliminate a chain of command and have everyone talking to each other, and I'm sure you all remember the famous case of the 777 aircraft that crashed in San Francisco a few years ago. There were five senior pilots in the cockpit, and none of them criticized what the other one was doing when they knew they were doing it wrong. And finally, failure to acknowledge, address, or consider the weaknesses of those people who we charge with taking care. You have to know what your junior house staff, your junior associates, are capable of doing, and you cannot assign them a task because it's a teaching institution, knowing that they might make a mistake, and a mistake that you cannot retrieve the patient from harm. The best defense is always good medicine. Know your standard of care, know your plan of care, and if you decide to go off the reservation and do something unique, make sure you document your rationale on why you're doing it. Communicate and document. You want a professional flow of information between you and the patient, the patient and you. Make sure people understand what your assessment is, what your plan is, and again, judgment, judgment, judgment. Discuss with the family, with the patient. Document the time you're at the bedside. These things actually occupy about 90 seconds of your time with every patient visit, and you have the things that are almost always absent when you look in the record. Present alternatives to families, and as Mike just stated, know limits. Know the limits of what your institution can deliver, know the institution limits of what your team can deliver, and know your personal limits. No one is an expert in everything. No one should try to do everything alone. Who does this as their informed consent because they've been told, just say you've discussed risks and benefits and don't be too much in detail. I bet a lot of you do it or have done it at some point in time. This is a disaster. It may look good. Hospital lawyer may say that's all you need. This is terrible if anything ever comes to a lawsuit because people will say, what was discussed? Did you explain the problem? Was it standard? Were you using novel therapy? Were you experimenting on your patient? What were the risks? What were the alternative therapies that you offered? Are you sure the family understood what you said to them? Did you answer their questions? Did you know they don't speak English well? Did you use a translator? You can say, well, this is my usual custom and practice. Well, but doctor, do you remember this conversation with the family? Well, not really, but it's my custom and practice. Not going to fly, and to be honest, if I was sitting on a jury, I don't think I'd believe you either. On the other hand, look, I can't type to save my life. I use voice recognition software. I use templates, but nonetheless, every time that I have a conversation about a surgical operation, I document the time. I document if I use a translator. I do give a description of what I think my risks and benefits are, and if mine deviate from what I think the community standard is, I describe that as well. This is 90 seconds of my time using voice recognition software, probably less time for those of you who type well, and this will save you years of aggravation. Many people say, I don't have to worry. We have the electronic medical record. It's my friend. All the information is there. How can anyone criticize or comment? And I would say it's not your friend. That was one short note on a recent patient, and the only documentation of what anyone was thinking is one line. One line, and yet this was a child who was deathly ill, suffered multiple complications. I don't think anyone's suing on the child, but if I had to defend this case, I don't know what the entire team was thinking, let alone the neurosurgeon. So let me present two of my own cases. This may be familiar to Dr. Bruce out there in the audience. So this was a seven-year-old who presented with three years of decelerated growth, recent headaches, papildema, bitemporal hemianopsia, had an obvious craniopharyngioma. He underwent a gross total resection, very stormy post-operative course, transient DI. He had quadriparosis, and it turned out his post-op MRI showed a small pontine infarct. Long-term, he continued to have spastic quadriparosis. He had a normal weight, normal IQ, mainstream school, was in a wheelchair, no DI, and at seven years, the time that this lawsuit came to trial, there was no evidence of recurrence, and in fact, 20 years after the surgery, he still has no evidence of recurrence. So, is this malpractice? It's a bad outcome. So it starts with informed consent. I recommended that the child have the surgery. I discussed with the family in the office, and I provided them a copy of my consultation prior to surgery. I described how I talked to the family, and then we talked about the fact that there was a mortality, that there was a risk of deficit. So it starts with the informed consent, it starts with your communication with the family, it starts with explaining to the family what you're going to do. When I grew up, there was a clothing store in New York called Sims, and Sims motto was, an informed customer is our best customer. That is, the more you knew about what they were selling, the more you'd buy from them. That's probably the same standard we should be holding ourselves to. So, at trial, several things happened. Number one, the plaintiff's expert argued that gross total resection had been abandoned by neurosurgery for over 20 years. So this was an expert who was basically acting as an advocate and giving false testimony. My own expert, Dr. Bruce out there, clearly and succinctly explained to the jury what was a craniofringoma, what the options were, how the options had been discussed in advance, and how a bad outcome is always a potential. It was documented that there was informed consent, that the standard of care was met, and documentation that each day I met with the family, and I didn't write down everything I said, but I said I co-signed my residence note, wrote, sat down, discussed all these issues with family, spent 15 minutes at bedside, day after day after day. That's a 15-second note, even in my hands. And what happens? The jury foreman ultimately comes to see me as a patient. So, it was a defendant's verdict, it was two hours, it was short, because all these things were met. Different case. Seven-year-old with Dandy Walker, VP Shunt, placed at another institution, never seen before in our institution, comes to the OR with headache and lethargy. Seven o'clock at night, he gets a CT scan, it shows mild ventriculomegaly, we have no previous imaging, my partner's on call, and he takes him to the OR. Gets to the OR about two, two and a half hours later, finds a proximal malfunction, but the catheter is stuck. And he decides he's going to fulgurate, gets excellent flow, flushes, flow again, reconnects, tests the distal catheter, everything looks great. And by one o'clock that morning, kid looks great. Normal vital signs, asymptomatic, in a floor bed. The resident makes rounds the next morning, I come on call, I just returned from vacation, and I hear about the patient, he tells me the patient looks fine, everything went well yesterday, hopefully he'll go home later today. I'm getting home from vacation, so I come in a bit later to make rounds, I see the kid at 2.30 in the afternoon, and dad says he's much better, but he's still complaining of headache. And having never met him before, or never met her before, I say let's get a follow-up CT. Now this was a number of years ago, it was before PAX, Facebook, Flickr, Twitter, a number of different things. So two hours later, the second year neurosurgeon resident calls me and says, looks like the scan is fine. It's no worse than it was before. Okay, I don't know what his ventricles are normally, but kid looks good, he's fine, don't worry about it. About two hours after that, the kid starts having intermittent bradycardia and complains of headaches. The PEDS intern sees the patient, but doesn't call neurosurgery, doesn't call an in-house PEDS attending who is present. The neurosurgeon resident doesn't come down and make any more trips, because kid's had a good CT at 2.30 in the afternoon, but I don't need to see him again. 11 o'clock that night, the kid arrests. I'm there 30 minutes later, pop a vitricin, no result, and the kid dies. Is this malpractice? Absolutely. This is 100% defensible. This was a complete systems failure, and this is what we are prone to time and time again. I mistakenly assumed that the resident was capable of doing something he wasn't. It was an error in my judgment, and I'm the captain of the ship. The neurosurgeon resident abandoned care. He didn't go back and see a patient again for over 8 hours after we knew we were concerned and after we knew that we had little information about this patient previously. The PEDS intern had a failure of judgment and a failure to communicate. The PEDS team had a failure to contact neurosurgery, and they too had a failure to communicate with their own attending, so everything could have been reversed. Had I seen the scan, because I should have known the resident couldn't interpret it well because of a subtle difference in ventricular size, that could have stopped it. Had the neurosurgeon resident come back and said, gee, this kid isn't getting better. He's getting worse. That could have stopped it. Had the pediatric intern simply said, gee, the kid's bradycardic. Let me speak to someone a little higher up and see if this is a normal course or not. That could have stopped it. Multiple steps along the way that could have prevented this child's death. And this was the case that we simply settled before any suit was initiated. The hospital reached out to the family, said this was an error. It was inexcusable. Let us come to a settlement. Thank you.

medical malpractice

expert witnesses

legal definition

damages

informed consent

healthcare system