To the Editor:
Hochberg et al1 have replaced fear with knowledge in their institution's professionalism seminar about malpractice for surgery residents. I trust that the following suggestions for the course content, and a contrasting analysis of the setting in which technical surgical errors arise, will add to the authors' contribution.
In addition to acquainting trainees with the anatomy of tort suits, a fundamental course precept should be maintenance of the patient-doctor relationship and assurance of good care. Thus, the course should include strategies for (1) communicating with potentially injured patients, (2) maintaining the patient-doctor relationship, and (3) supporting remedial or ongoing care in the original institution or by transfer of care. These principles are as important as, and more empowering than, limiting ourselves to discerning whether we have erred and defending ourselves, error or no. When we physicians address only our own pain, patients become commodities at best, adversaries at worst. Institutions that train practitioners using the three principles outlined above experience stronger patient-doctor relationships and institutional trust, better resolution of physicians' feelings of failure or guilt, and substantially improved patient safety.2
In their article, the authors' language and analysis were sometimes imprecise, which can exacerbate the anxiety the authors seek to allay. Contrary to their lead statement, every doctor is not likely to be sued by a patient. They later state that “frivolous” malpractice claims contribute to the growth of liability insurance costs, defense costs, and payouts. Possibly inaccurate and emotionally loaded terms, like “frivolous,” can inflame parties and transform caregivers into combatants. As Studdert et al3 ably demonstrated, and as we realize whenever we analyze closed claims, it is difficult to know whether a claim is valid until substantial investigation or legal discovery occurs. This fact should be emphasized in malpractice education.
The exquisite pain of malpractice litigation is superficially salved if we physicians see ourselves as victims of unsavory attorneys. Rather, I suggest that malpractice curricula stress that reflection, and sober analysis from the perspective of our special relationship to patients and society, can help us make appropriate use of our legal advocates, interact with legal adversaries, or act with balance when we, a colleague, or a family member is a defendant.
Importantly but erroneously, the authors imply that most technical surgical errors are committed by inattentive, experienced surgeons performing routine procedures. In fact, the source they cite found the opposite: The cases were “predominantly … complicated by comorbidity, complex anatomy, repeat surgery, or equipment problems.”4 Technical errors occurred in the context of complexity. This phenomenon is yet one more element that should be discussed in any malpractice curricula for surgery residents.
Anne Micheaux Akwari, MD, JD
Director, A.M. Akwari LLC, and assistant consulting professor, Duke University School of Medicine, Durham, North Carolina; email@example.com.
2 Boothman RC, Blackwell AM, Campbell DA, Commiskey E, Anderson S. A better approach to medical malpractice claims? The University of Michigan experience. J Health Life Sci Law. 2009;2:125–159.
3 Studdert DM, Mello MM, Gawande AA, et al. Claims, errors, and compensation payments in medical malpractice litigation. N Engl J Med. 2006;354:2024–2033.
4 Regenbogen SE, Greenberg CC, Studdert DM, Lipsitz SR, Zinner MJ, Gawande AA. Patterns of technical error among surgical malpractice claims: An analysis of strategies to prevent injury to surgery patients. Ann Surg. 2007;246:705–711.