Medicolegal issues in perioperative medicine: Lessons from real cases

• Published in: Cleveland Clinic journal of medicine Vol. 76; no. Suppl 4; pp. S119 - S125
• Main Authors: Michota, Franklin A, Donnelly, Matthew J
• Format: Journal Article
• Language: English
• Published: United States Cleveland Clinic 01-11-2009
• Subjects: Aged; Defensive Medicine - legislation & jurisprudence; Exercise Test - adverse effects; Fatal Outcome; Humans; Male; Malpractice - legislation & jurisprudence; Orthopedic Procedures - legislation & jurisprudence; Perioperative Care - legislation & jurisprudence; Postoperative Complications; Risk Assessment; United States; United States
• ISSN: 0891-1150; 1939-2869
• DOI: 10.3949/ccjm.76.s4.19

Medical malpractice lawsuits are commonly brought against surgeons, anesthesiologists, and internists involved in perioperative
care. They can be enormously expensive as well as damaging to a doctor’s career. While physicians cannot eliminate the risk
of lawsuits, they can help protect themselves by providing competent and compassionate care, practicing good communication
with patients (and their families when possible), and documenting patient communications and justifications for any medical
decisions that could be challenged.
KEY POINTS
The standard to which a defendant in a malpractice suit is held is that of a “reasonable physician” dealing with a “reasonable
patient.”
In malpractice cases, the plaintiff need only establish that an allegation is “more likely than not” rather than the “beyond
a reasonable doubt” threshold used for criminal cases.
Plaintiffs typically seek damages (financial compensation) for economic losses as well as for pain and suffering. Awarding
punitive damages against an individual physician for intentional misconduct is rare, and such damages are usually not covered
by malpractice insurance.
Settling a case is often cheaper and easier than going to court, but the physician’s reputation may be permanently damaged
due to required reporting to the National Practitioner Data Bank.
Informed consent should involve more than a patient signing a form: the doctor should take time to explain the risks of the
intervention as well as available alternatives, and document that the patient understood.