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INTRODUCTION

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  • What are the underlying risk factors for surgical lawsuits?

  • This chapter provides a specific “toolkit” aimed at reducing the risk of surgical litigation

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Despite an increased use of checklists and surgical time-outs, surgeons continue to be sued at higher rates than other specialties. In this chapter, you will learn about 5 specific areas of risk and begin to understand the major reasons surgeons are sued—and learn strategies for prevention. We’ll examine ways of improving patient care by assessing the 5 areas in surgery that can result in litigation: (1) Was the surgery indicated?, (2) informed consent, (3) preoperative evaluation of the patient, (4) intraoperative issues, and (5) postoperative complications. You’ll also receive practical advice on communication, recognizing common sources of errors, and improving systems.

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AN OVERVIEW OF SURGICAL LITIGATION AND ASSESSING ITS IMPACT

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Before we delve into the specifics surrounding litigation and surgery, it’s important to understand the climate surrounding litigation. First, we’ll look at the odds of being sued. Then we’ll do a high-level overview of the types of suits surgeons are involved with, the associated costs, and a review of literature.

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What Are the Odds?
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As a physician in the United States, your risk of being sued at some point in your career is about 65%. For surgeons, this risk is even higher: Orthopedic and neurosurgeons brush the ceiling with a 99% risk of being sued at some point during their careers.1 Many believe this high level of litigation is contributing to a malpractice crisis in the United States, which has been attributed to making care more expensive and less available.

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Rates for medical malpractice insurance, also referred to as professional liability insurance, vary greatly from state to state. In 2014, the Medical Liability Monitor stated that general surgery premiums ranged from annual rates of approximately $11,000 in Minnesota and Nebraska to nearly $190,000 in Dade County, Florida (we imagine an extra $179,000 in overhead would give anyone pause!).2 The variations in cost are related to the presence or absence of “malpractice caps” (more about this topic follows) and the availability of state-funded supplemental funds, as well as liberal jury awards, high administrative costs, and legal fees.

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How Is Medical Malpractice Proven?
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Medical malpractice lawsuits are typically filed under tort law, the area of law that covers most civil lawsuits. Tort law is intended to redress a wrong done to a person, usually through the award of monetary damages. To be awarded damages in a medical malpractice suit, the plaintiff must prove the care received was negligent to a reasonable degree of medical certainty (greater than 50%). This includes proving that:

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  • There was a doctor-patient relationship and the physician had a duty to provide care,

  • The physician was negligent and delivered medical care below the standard of care,

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