The crisis of rapidly escalating professional liability insurance (PLI) rates faced by those of us in neurosurgical practice does not directly affect residents and fellows since their PLI premiums are covered by their cooperating institutions. Yet, because of the high-risk nature of the neurosurgical profession-unfortunately, all neurosurgeons now can expect to be named in a lawsuit during their careers-it is no less important for neurosurgical residents and fellows to learn to identify risks for medicolegal action and the means of avoiding such risks.
There are several areas in which residents may find themselves vulnerable to legal action. The following discussion of these areas is not intended to provide legal advice, but rather to share some common-sense ideas, based on my recent experiences as a resident and as an attending physician, for practicing both good medicine and risk management.
Shared Care and Other Concerns
The first area concerns the onus for shared care. The foundations of postgraduate medical education are based on this key principle. If there is an adverse outcome, the legal question likely will pertain to whether the delegation of responsibility was reasonable given the individual’s level of training, experience and capabilities, as well as whether the attending physician’s supervision was adequate.
The concept of shared care pertains to the temporal relationships of resident and staff coverage (change of shifts, cross-coverage, and transfers to other services), as well as to the various responsibilities of team members, extending from the initial physician through his or her colleagues to fellows and residents at various levels of training.
The best advice, particularly for those working in structured university settings, is that the most responsible physician (the attending) must be identified to all parties (particularly to the patient); orders must be written; clinical notes must be accurate and up-to-date; physicians should review nursing notes whenever possible (since any inaccuracies can be corrected in physician notes); the concerns of others should be heeded and when in doubt, one should “ask prior to acting”; and when transferring a patient’s care to others, the reasons for such a transfer should be clearly stated, not only to the receiving team, but especially to the patient and the patient’s relatives.
When undertaking a surgical procedure, the resident not only must be familiar with the procedure, but must insist on assistance if the procedure is unfamiliar. One should stay within his or her safe boundaries and call for help sooner rather than later.
The value of the clinical record cannot be overestimated. Detailed documentation is of an undeniable benefit in defending physicians, should the need arise. Moreover, one must acknowledge that the principal reason for a medical record is to facilitate clinical care. When documenting one’s thoughts, the comments should be limited to clinically relevant material. The results of investigative or laboratory procedures, must be appropriately recorded and communicated to patients within a reasonable time frame. The records must be completed contemporaneously, and under no circumstances should one attempt to alter a record after the fact.
To err may be human, but the clinical record is the first order of defense for eliminating many errors. For example, mistakes in the administration of medication are less likely to occur if one habitually verifies the identity of all patients and their allergies prior to ordering medications.
With regard to errors of diagnosis, in a liability suit the court must differentiate between negligence and an error in judgment. To that end a resident will be judged against his or her peers in a number of aspects. One is well advised to know the facts prior to making any comment on a patient’s care.
When consulting with patients over the telephone, it is best to err on the side of bringing people to the emergency room or outpatient office. Although doing so may seem painful to the already overburdened resident on call, one must remember that even the simple advice of giving Tylenol creates a duty to that patient.
Professional Conduct Speaks Volumes
In summary, it is relatively rare that a resident is actually named in a liability suit; however, it is entirely possible that a resident’s actions may place the attending physician in a precarious position. One’s professional conduct is often a key factor in the avoidance of legal action. There must be continuous and precise dialogue with members of the surgical team, especially with the attending physician. Always defer to the attending physician, who makes the ultimate decision in most matters. Maintain confidentiality, particularly in public areas, and respect the patient’s privacy as much as possible, even in semi-private rooms.
Above all, establish and maintain a professional relationship, centered on courteous and honest communication, with patients and their families.
Brian R. Subach, MD, currently a neurosurgeon at The Virginia Spine Institute, Reston, Va., until recently served as an attending physician at Emory University School of Medicine. He is secretary of the AANS Young Neurosurgeons Committee.