Over the years, there have been many lawsuits filed against physicians because the patient was not satisfied with a surgical outcome. It could have been a post-operative complication, delayed healing, prolonged pain, cosmetically undesirable result, or a host of other reasons. In the majority of these cases, the physician was found to have acted within the standard of care and the case was eventually dropped or in the event the case went to trial, the jury found in favor of the physician. In the meantime, a lot of time, effort, money, frustration, and stress was spent on claims in which the medicine was good.

So, Why Do These Patients Sue?
This quote by S. Jay Jayasanakar, MD is insightful, “The patient’s expectation, not ours, is the yardstick by which our patients measure the course of recovery, occurrence of complications, and the outcome.” If the patient’s expectations are not met, the patient is more apt to sue, regardless of whether malpractice occurred.

Managing patient expectations should begin prior to surgery as part of the informed consent discussion. You and your patient should have mutually agreed on the plan of treatment. The patient should have been fully informed of what is involved pre-, peri-, and post-operatively and agreed to be an active participant in treatment. The patient should have also been informed of the risk of complications.

Post-operatively, continual discussions with the patient are important to review pre-operative education and provide ongoing education, inform the patient of their progress, inform them of any complications, and answer any questions or concerns he/she might have. In the event of a complication, a physician who has a good rapport with their patient – and has been open and honest regarding the patient’s condition – is much less likely to be sued.

How Can You Reduce the Risk?

• Document all conversations with the patient and family. This includes patient education, post-operative instructions, questions asked by the patient and your answer, any patient concerns and your response.
• Give your patient your full attention. It is important for the patient to feel heard and respected. Avoid judgement, demonstrate interest in the patient, avoid interruptions, be sincere, concentrate on what the patient is communicating verbally and nonverbally, and address each of the patient’s concerns.
• Continually assess the patient’s expectations. Make sure you and your patient are on the same page. If the patient has unrealistic expectations, take the time to provide additional education. Involvement of a family member, or caretaker may be necessary to enlist their aid in helping the patient develop realistic expectations. Again, document all patient education and instructions.
• Promptly address and inform patients of post-operative complications. Inform patients if they are not progressing as expected or if they are experiencing problems such as a delay in healing, infection, poor surgical outcome, or any other complications. What are the treatment options? How is it going to affect the patient’s recovery? It is much better for a patient to hear about complications or a poor outcome from you than from a subsequent treating provider!
• Assess and document patient compliance or non-compliance. Document patient statements of non-compliance and your observations of non-compliance (e.g., a dirty cast bottom when the patient was instructed to be non-weight bearing). Try to determine the reason for any non-compliance and work with the patient to remove or address barriers, if possible. Document your discussions with the patient regarding the risks of non-compliance. If a patient suffers a bad outcome because of their own actions or inactions, it is much easier to defend allegations of malpractice against the physician if the patient’s non-compliance is documented in the medical record.

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The information contained on the PICA Blog does not establish a standard of care, nor does it constitute legal advice. The information is for general informational purposes only. We encourage all blog visitors to consult with their personal attorneys for legal advice, as specific legal requirements may vary from state to state. Links or references to organizations, websites, or other information is for reference use only and do not constitute the rendering of legal, financial, or other professional advice or recommendations. All information contained on the blog is subject to change.