0:06

Behind the Knife, the surgery

0:08

podcast. Relevant and engaging content

0:10

designed to help you dominate

0:12

the day. All

0:22

right. Hi, everyone, and welcome back to Behind the Knife. This is

0:24

Nina Clark and I'll be your host today. Most

0:27

surgeons go through training understanding that malpractice suits

0:29

and legal risk management will be a part

0:31

of their careers. We hear about getting malpractice

0:33

insurance. We know that by picking a procedural

0:36

specialty, we've got some unique risks inherent to

0:38

our careers. And we've all heard

0:40

about some really well publicized cases where other

0:42

surgeons have been found guilty of medical malpractice.

0:46

Just scroll through the rest of your podcast feed and you'll find

0:48

a couple of examples. What's less

0:50

widely understood is that even trainees can actually

0:52

be involved in these lawsuits. While

0:55

it's uncommon overall, it's a pretty terrifying idea

0:57

and something that every trainee should generally be

0:59

aware of. There are also some really

1:01

concrete ways that we can reduce the risk of this

1:03

happening that carry not only through our training, but into

1:06

our careers as surgeons later on. To help

1:08

us discuss these issues today, we are going

1:10

to be joined by two representatives from the

1:12

University of Washington, Cindy Hamra and Lisa Hamill.

1:16

Cindy Hamra is an associate dean

1:18

in the GME office at the

1:20

University of Washington School of Medicine

1:22

where she leads the operational, administrative

1:24

and finance functions. The UW

1:26

School of Medicine sponsors clinical training for

1:29

over 1,600 medical and dental residents and

1:31

fellows in over 200 programs. UW

1:34

Medicine through the School of Medicine is

1:36

the largest sponsor of GME programs in

1:39

the five state Whammy region that includes

1:41

Washington, Wyoming, Alaska, Montana and

1:43

Idaho. Lisa Hamill is

1:45

a senior director of clinical risk management

1:47

for UW Medicine. Prior to that,

1:50

she spent over 20 years as a defense

1:52

attorney, primarily working in medical malpractice and professional

1:54

liability defense. Cindy and Lisa, we're

1:56

so glad to have you on Behind the

1:58

Knife today and I'm really looking forward to

2:00

this conversation. Appreciate the opportunity. Thank you. Yeah,

2:03

thanks for having us. So let's

2:05

dive right in and just confirm for

2:07

me, can fellows and residents be sued

2:09

for medical malpractice? So the

2:11

answer to that is yes, absolutely. Typically,

2:15

however, the attending is

2:17

overall responsible for the

2:19

residents and the work that

2:21

they do as kind of under a legal

2:23

concept of responding at Superior. So

2:25

it would be unusual for a resident

2:27

to be sued in their own right.

2:29

It's not very common, but

2:31

yes, they can be sued. Okay,

2:34

and what about medical students? I feel like,

2:36

you know, we never heard about it at

2:38

all as medical students, but we are still,

2:40

you know, doing rotations on the wards and

2:43

physically taking care of patients occasionally. Can medical

2:45

students be involved in these lawsuits? They

2:48

can, but that is very, very rare. And

2:50

if you think about it from a plaintiff's

2:52

side, they want to, you know, get to

2:54

the money, right? And the

2:56

most money is really suing a

2:58

suing an institution and the maybe

3:00

naming the primary people involved. Typically

3:02

what will happen, though, if an

3:04

institution is being also being named,

3:06

that the individuals will end up

3:08

being dropped out unless

3:11

there's something specifically egregious that

3:13

plaintiffs want to keep the

3:15

individuals involved as named

3:17

parties. Yeah,

3:19

I can see that if somebody had sued

3:21

me as a medical student, they would only

3:23

get, you know, more of my debt potentially

3:25

than I already have. All

3:27

right. So how big of a problem? You've

3:29

mentioned that this is uncommon a couple of

3:31

times for both trainees and for students, obviously.

3:34

But how big of a problem are we

3:36

talking about here? How often are surgeons sued

3:38

in the United States? And then how often

3:40

does that kind of trickle down to trainees

3:42

and their involvement in these lawsuits? So

3:45

I've got some stats that and

3:47

it really depends on what source

3:49

you look at. The National Institute

3:51

of Health publishes some stats. American

3:53

Medical Association publishes stats. JAMA

3:55

publishes stats. They're all pretty

3:57

darn similar in terms of residents,

3:59

fellows. the number ranges between 10

4:01

and 15 percent. But

4:04

for surgeons in general, surgeons are among

4:06

the highest, if not the highest, they

4:08

are among the highest sued in any

4:11

of the medical specialties. And

4:13

that number, you know, it ranges depending upon again the

4:15

source that you're looking at, it's around

4:17

55 to 70 percent of

4:19

surgeons will be sued at least once

4:21

in their lifetime. That's a much higher

4:23

number than I even feel like I

4:25

had a concept of. I think, you

4:27

know, in medical school, I feel like

4:29

I heard that OB, GYN, and anesthesia

4:31

had really high malpractice insurance costs as

4:33

presumably as a result of higher risks

4:35

for being involved in these lawsuits. But

4:37

I feel like I heard about it

4:39

a little less going into general surgery.

4:41

So that's really helpful to

4:43

know. Cindy, from a GME standpoint, how

4:46

do you think about this as you

4:48

work with trainees in these fields? And

4:50

do you provide any additional, you know,

4:52

support or education towards specifically trainees maybe

4:55

going into procedural specialties? And

4:57

how do you kind of conceptualize this as somebody who

4:59

works with these trainees kind of every day? You

5:02

know, that's a great question. You know, I

5:04

think it's interesting to hear the stats that

5:06

Lisa has. My experience being in GME over

5:08

the last eight, nine years is that we

5:10

haven't seen a lot of trainees named in

5:12

cases. However, and Lisa, you may have more

5:15

thoughts on this, it seems to be increasing.

5:17

And, you know, there may be reasons for

5:19

that. But I think one of

5:21

the things that that tells us is that there's

5:23

an increasing need for residents of Dallas to know,

5:25

you know, about this and to

5:27

sort of equip themselves with knowledge about what their

5:29

institutional structure is and where that infrastructure is, if

5:31

they do see a situation like this. And we've

5:33

tried to do a little bit more, I think,

5:36

as it's come to our attention, both

5:38

that it's happening more frequently and that our residents

5:40

are really, you know, nervous about it. I mean,

5:42

it is terrifying. That's the word you used. We've

5:45

talked about how we can provide more resources. I

5:47

do think, and, you know, you need

5:50

to tell me where to put this,

5:52

but like the ACG actually has requirements

5:54

that institutions both provide liability insurance for

5:56

residents in Dallas and notify them about

5:58

that. And I think that's something for

6:01

residents and scholars to know. You know,

6:03

I mean, you guys hear so much,

6:05

right? There's so much information all the

6:07

time, but it's worth equipping yourself with

6:09

that knowledge, right? What's your institution's policy?

6:12

What does it mean for how you're covered? Where

6:14

do you go if you get contacted by

6:16

an attorney? All of those things I think

6:18

are, they're going to vary by institution and

6:20

they're really important to know now. And

6:23

it's also just a good practice, right? Because then when you

6:25

go into an independent practice, you're going to want to know

6:28

those things as well. So it's kind of a good habit

6:30

to get into, to start looking into that and being aware

6:32

of. That's super helpful. And

6:34

I actually didn't know that it was required

6:36

by the ACGME that that coverage was provided

6:39

to us. I knew that I had

6:41

it at some level, but I hadn't really dug into it

6:43

very much. And we'll get a little

6:45

bit into kind of the payment for all of this stuff

6:47

when it does happen, if and when it does happen a

6:49

little later too. But that's really

6:51

helpful kind of background to know that there

6:53

is some, you know, baseline requirement for support

6:56

for trainees in these programs. Lisa, maybe you

6:58

can help us out with this. Can you

7:00

walk us through kind of the typical steps

7:02

that happen if a patient decides to sue

7:04

their treatment team, maybe including a trainee? I

7:07

feel like I mentioned this before we started recording

7:09

that my knowledge of the legal system

7:12

is pretty much limited to law and order SVU. So

7:14

just kind of a brief, you know, broad strokes

7:16

overview of what happens during one of these lawsuits

7:19

and how it kind of comes to fruition. Sure.

7:22

So it depends on the state. Okay. So

7:25

it depends on the state's different rules in terms of

7:27

statute of limitations and in the

7:29

prerequisite. So here in Washington state,

7:31

a patient would, they've got

7:34

essentially three years. So I'm just going to

7:36

throw that number out. There's

7:38

so many variables on that number. If

7:41

the injury happened during the pediatric years, they've

7:43

got 18 years and then time. So it

7:45

could be a very long time. But typically

7:47

what would happen is they would go to

7:49

an attorney, present their case, and

7:51

an attorney would evaluate whether the case is

7:54

worth taking on. I know we've seen a

7:56

lot of press on the McDonald's and these

7:58

other, you know, crazy injuries. But medical

8:01

malpractice cases are unique in that

8:03

they typically do not come to

8:05

fruition without having expert

8:08

testimonies to support the plaintiff's

8:10

case. And that can be very

8:12

expensive. When I practiced regularly, my

8:14

expert witnesses would charge $400 to $700 an

8:16

hour. So

8:20

to have an expert evaluate

8:22

records and make a determination

8:24

whether there's something legitimate there,

8:26

it's expensive. So

8:28

it's very rare anymore to find a

8:31

med mal case that is frivolous.

8:35

So a plaintiff would come or a patient

8:37

would come to an attorney. They would typically

8:40

get the records, make an evaluation. And then

8:42

if they decide to take on the case,

8:44

they would identify an institution. They would name

8:46

an institution and then most likely

8:48

the surgeons or the physicians that were

8:50

also involved with the care. And they

8:52

would be named parties. In

8:55

the state of Washington, because we are a

8:57

state institution, there is a

8:59

prerequisite that plaintiffs' attorneys have

9:02

to file a notice of tort claim before

9:04

they can actually file a lawsuit. So

9:06

that provides us as a state

9:09

institution notice of a potential

9:11

claim that we have the opportunity then

9:13

to evaluate and see whether it's something

9:15

that's legitimate, that maybe it's something we

9:18

want to settle. But it provides us

9:20

with notice before an actual lawsuit's filed.

9:23

So if a lawsuit is filed, then when

9:25

you ask about how would a trainee be

9:27

notified, they have to be personally

9:29

served. So somebody will come and

9:31

it's a really horrible situation. Somebody

9:34

comes knocking on your door and it's

9:36

a process server. And we've had this

9:38

happen with folks right over Thanksgiving dinner,

9:40

they answer the door and their spouse

9:42

receives the summons and complaint. It

9:44

can be a really lousy situation. At

9:46

the university and some other institutions, there's

9:49

a handful of plaintiffs' attorneys that we know very

9:51

well. And we have

9:54

this unwritten courtesy rule where

9:56

the plaintiffs' counsel will contact

9:58

our claim. officer or our

10:01

attorneys and say, hey, I'm gonna, would

10:03

you accept service for these folks, right?

10:05

So we avoid the embarrassment and that

10:07

uncomfortableness. So we do have this sort

10:09

of unwritten guideline, not in all, but

10:11

in some instances, which that and that

10:13

really kind of helps to ease some

10:16

of the stress and embarrassment, but you

10:18

have to be personally served with the

10:20

summons and complaint. And then the employer,

10:22

so here with the university, we would

10:24

appoint legal counsel to represent you as

10:26

a trainee. The cost of

10:29

all of that is covered by the insurance

10:31

for the institution. So you're

10:33

not out of pocket any money. And

10:35

then it would roll through the litigation

10:37

process, again, depending upon the

10:39

jurisdiction and where you're at here in

10:41

King County, it'll be two

10:43

to three years from the time that you're

10:46

served with a lawsuit to the time resolution

10:48

hits, if it goes the whole way through

10:50

a trial, that process is a very long

10:52

time. Criminal cases take priority. So

10:55

we have trial setting, a trial schedule

10:57

that gets set pretty early out. And

10:59

right now in King County, they're setting

11:01

them out about one and a half

11:03

to two years out. So, and that's

11:06

excluding continuances and other things. So counsel

11:08

be represented, and then they'll work with

11:10

you through the discovery process. Sometimes you'll

11:12

be dropped, you know, after they get

11:14

the information they need, right? And the

11:16

university or the institution is the only

11:19

remaining defendant, named to defendant, but sometimes

11:21

not. Sometimes they want, there may be

11:23

political reasons or some

11:25

sort of strategical reasons why they

11:27

want to have particular people specifically

11:29

named as parties in litigation. And

11:31

then it'll go through the process

11:33

in King County. There is a

11:35

requirement that all cases go to

11:37

an alternative dispute resolution

11:40

process before a trial

11:42

can be heard. They really try to clear

11:44

out, you know, to get very few cases

11:46

going to trial. So we have to do

11:48

an arbitration or mediation, something like that, some

11:51

sort of settlement negotiations. And then if that

11:53

fails, then you get a trial date. So

11:56

they're really in and so about in King County, it's

11:58

about 98% of cases

12:01

that are tried or criminal. So

12:03

very small percentage of civil cases

12:05

actually go. And then from

12:08

that very small portion, an even smaller

12:10

portion of that would be medical malpractice

12:12

cases. That's really helpful

12:14

structure. And it sounds like you

12:17

mentioned these expert witnesses who kind of come

12:19

in and help to almost

12:21

legitimize the complaints that actually make it

12:23

through this process. So

12:25

it seems like there's some filtering that happens

12:27

from the time that patients feel like they

12:29

might have a complaint and then to each

12:31

step along the way there's some things that

12:33

will fall out of the wash basically. So

12:35

is there, do those expert

12:37

witnesses typically, it sounds like they come

12:39

in at the beginning to consult with

12:42

the patient's potential lawyer and establish whether

12:44

this is a legitimate complaint that should

12:46

move forward. And then I presume

12:48

that they're also involved kind of throughout the decision

12:50

making process from then on. Is that the case

12:52

too? Well, it

12:55

depends. So I think an important thing

12:57

to note is that while plaintiff's counsel

12:59

would retain experts, your defense counsel will

13:01

too. So as you're

13:03

represented, defense attorneys will

13:05

retain competing experts. And

13:08

so they will evaluate the case from a

13:10

defense standpoint, plaintiff's counsel will evaluate from a

13:12

plaintiff standpoint, and then there'll

13:14

be some discovery. You'll get in some

13:16

areas, they're required to have an expert

13:18

written report. Not always the case,

13:21

it depends on the jurisdiction. And

13:23

then there will be, usually it's a deposition.

13:25

So one side will get to post and

13:28

then that transcript will be given to the

13:30

other defense attorney who will, or the other

13:32

defense expert. And then they'll

13:34

nitpick through it and say, okay, this

13:36

is untrue. So make sure that we

13:38

highlight these areas or these are areas

13:40

of vulnerabilities. So you

13:43

don't necessarily consult with the expert the

13:45

whole way through, but on certain, certainly

13:48

on the science, on the medical stuff, and you'll

13:50

want to know what's weaknesses. They'll

13:53

be relying on statistics, on

13:55

surveys, on what's standard

13:57

practice. It's very important to know

13:59

that. you know, to be held

14:01

liable in a medical negligence case,

14:03

you have to be found to

14:05

have breached a standard of care,

14:07

which is what a reasonably prudent

14:09

physician in the same circumstances, you

14:11

know, practicing in the same type

14:13

of medicine and same circumstances would

14:15

have done in that situation. So

14:18

that standard of care may be different.

14:20

If you're practicing in a rural area

14:22

in, say, Eastern Washington versus here at

14:24

the university, there may be an entirely

14:26

different standard because of the resources and

14:28

things that you might have available to

14:30

you. So those are the things, you

14:32

know, the expert would work and help

14:34

evaluate. There's also, you know, both sides

14:36

would also retain experts to help evaluate

14:39

damages, right? So somebody might be permanently

14:41

disabled. Okay, they might have a life

14:43

care expert. What does that entail in

14:45

terms of daily, you know, ADAs for

14:47

daily living, you know, in lost wages,

14:49

that sort of thing. And both sides

14:51

would have that. So if it gets

14:53

to a damage phase, both sides would

14:55

have competing experts in terms of what

14:57

the actual damages would be in the

14:59

case. Got it. What are

15:02

the different ways that you can be involved

15:04

in a lawsuit if you're, say, a resident

15:06

trainee? Obviously, you could be included as a

15:08

defendant or one of several defendants, it sounds

15:10

like more typically. But are there

15:12

other cases that your name might come up and

15:15

you might be involved somehow in a lawsuit that

15:17

doesn't necessarily mean that you're a defendant in that

15:19

case? Yeah, and that's not

15:21

uncommon either. You could be a fact

15:23

witness in a particular case. So perhaps

15:26

you may not be named, but you

15:28

might have been involved with the patient's

15:30

care. And so you might be

15:32

called as a fact witness to talk about your particular

15:34

part of the treatment. That's not

15:36

an issue, but it might be that

15:38

piece that ties things together. The other

15:41

thing that we see, not as often,

15:43

but it is not uncommon, is

15:45

that you might be called as a witness

15:47

on something altogether different. So for example, maybe

15:49

an LNI case, right, that you might have

15:52

some involvement in the treatment of the patient,

15:54

and so you might be called as a

15:56

witness there. But we also see that in

15:58

custody matters. There might be an argument. as

16:01

to whether a parent would be fit to

16:03

be a caregiver, whether it's a full-time or

16:05

part-time. And so they may be called to,

16:07

if you've had involvement with the patient, to be

16:10

called as a witness in those instances. Yeah. Renee,

16:13

I think if I can add, there are

16:15

a couple of other things I was thinking

16:17

about. We sometimes see trainees involved in matters

16:20

where a patient may need

16:22

to be held due to concerns about mental

16:24

health or other. And I think when that's

16:26

the case, when that

16:28

happens frequently in training, I understand that our trainees get

16:30

more, they're more used to it, they get more training

16:33

about it. And sometimes we see in

16:35

maybe child abuse and neglect types of cases as

16:37

well, our trainees participate. I think those are more

16:39

baked into the structure of the residency programs because

16:41

those specialties focus on that kind of care. But

16:44

we do have those. And I actually was thinking,

16:46

as Lisa was talking, when our

16:48

residents are involved in matters, maybe not as

16:50

a defendant, but they need to be deposed

16:53

or something like that, we actually do have

16:55

an infrastructure of support for that too. And

16:57

so I think it's actually worth noting that,

16:59

for example, when we've had residents reach out and say,

17:01

hey, I heard from an attorney that they wanted to

17:03

pose an anti-case and what is this about? And

17:06

even if we aren't necessarily providing counsel

17:08

in the situations, UW has a mediation

17:11

like consultant who will help prepare

17:13

the resident for it. And so I

17:15

say that because, again, I think it's

17:17

very worse either finding out now or

17:20

if you're a resident or fellow, or

17:22

should you get an inquiry like this,

17:24

go to your institution and see what

17:26

the infrastructure of support is because we're

17:28

not going to make it a pleasant situation, but we

17:31

can certainly try to take away some of the difficulty

17:33

and help you feel better prepared. I think that's really

17:35

important to know because my sense

17:37

is most of our residents and fellows wouldn't

17:39

know that unless they had to. And

17:42

so if by asking, you can

17:44

get hooked up with the right resources, it's a

17:46

really worthwhile ask. Absolutely.

17:49

You still my next question, which is like if

17:51

you get a message from a lawyer or if

17:53

you get served or something like that, what should

17:55

your next step be basically as a trainee? And

17:57

it sounds like it should be talk to somebody.

18:00

at your institution like immediately and they will help

18:02

you through the next steps. Yeah,

18:04

that's definitely the guidance we give at UW

18:06

and we say, I think there's two things.

18:08

One is, I mean, just go to your

18:10

program director. To me, that's always the default

18:12

no matter where you are because if they

18:15

don't know the answer, they're going to likely at least

18:17

be able to start the process of getting you connected

18:19

with the right resources. We have, at

18:21

UW, we put together some sort

18:24

of some guidance for our residents and volunteers because

18:26

we found that, you know, people were hearing from

18:28

things and sometimes the PDs didn't know either or

18:30

what to do. And so, what we asked them

18:32

was, look at you here, if you get a

18:34

subpoena, if you get, you know, contacted by council,

18:36

whatever, just contact GME, contact your program director because

18:39

what we want to be able to do is, you

18:41

know, at least understand conceptually what's going on and

18:43

then get you hooked up with the right part

18:46

of the institution that can support you here, whether that's

18:48

a different office or whatever is the right place to

18:50

go. And, you know, one of the things we think

18:52

about is like our part of our job is to

18:55

integrate our residents and fellows into the system and these

18:57

are resources that are available to our physicians so they

18:59

should know about it. The other thing

19:01

I will say, you know, one of the reasons

19:03

that it's important to hear from our trainees who

19:06

are going through this is we also just want

19:08

to provide support, right, because it is stressful. I

19:10

mean, there's technical support, but there's also like, whether

19:13

it's wellness counseling or it's, you know,

19:15

our EAP or a mentor, because I

19:17

think when you start paying attention, you'll

19:19

realize a lot of your colleagues have

19:21

gone through this. Sometimes there's a peer-to-peer

19:23

structure that supports physicians going through

19:25

that, you know, legal matter. And so we

19:28

want to be able to make sure you've

19:31

got whatever it is, right, counsel or claim

19:33

services, whoever is the right office. But we

19:35

also just want to make sure that like

19:37

you're feeling supported during the process because it's

19:39

so stressful and, you know, training's hard enough

19:41

without carrying the sexual load. Yeah, that's great.

19:43

I, you know, this kind of

19:46

brings up one of my anxieties about this whole

19:48

system. And Lisa, you mentioned, you know, this standard

19:50

of care is kind of what you were expected

19:52

to meet if you're named in one of these

19:54

malpractice suits. And you

19:57

mentioned that there's different standards of care, right,

19:59

and there's, you know, depending on on your

20:01

resource availability, your practice environment, your training and

20:03

your expertise. Part of surgical

20:06

training and residency is the fact that we

20:08

will make mistakes and that we do. And

20:10

we have training as a result of that,

20:12

right? Is to hopefully make us less and

20:15

less likely to make mistakes, but we do

20:17

it as interns and as junior residents and

20:19

as senior residents, right? So

20:21

how is this accounted for by the

20:23

legal system? Is there some way that

20:25

like basically acknowledges that we are still

20:27

on the learning curve for our eventual

20:29

professions and we're not, you know, necessarily

20:31

held to the same standards as attending

20:34

physicians? So from a legal

20:36

standpoint, you're absolutely right. And from a standard

20:38

of care, you know, what would a first

20:40

year resident do? You know, what would the

20:42

physician or, you know, what would a fellow

20:44

do, right? In this particular circumstance. And so

20:47

the standard would be that. That's

20:49

the legal answer. The practical

20:51

answer is a jury

20:54

looks at who's doing

20:56

the treating, right? And they're not gonna go, oh,

20:58

well, you know, as a resident, so I'm gonna

21:00

kind of excuse that or let. So, you know,

21:03

there's that, I'm gonna be, I'm just gonna be

21:05

frank. That's just how it is,

21:07

right? So, but in those particular cases, that's

21:09

why the attending is involved. And what we

21:12

see and, you know, I

21:14

mentioned National Institute of Health, JAMA, AMA, all

21:16

of the, they will all say that when

21:19

you've got a situation involving residents, more

21:22

than half of the time the attending

21:24

will be named. And part of the

21:26

issue would be inadequate

21:28

supervision. And so they

21:30

will say, you know, yes, we had a

21:33

trainee, but that the supervision was

21:35

inadequate and that should have, but the issue

21:37

should have been addressed right away, corrected right

21:39

away. And so that's, you know,

21:41

again, that's kind of how it falls overall

21:43

to the attending. Interestingly, you

21:45

know, it was interesting to me when I

21:48

did, when I was doing some research under,

21:50

for surgeons in particular, surgical residents. But the

21:52

AMA in 2023 published a little, some

21:56

statistics about surgical residents and

21:59

what they determined. was that

22:01

puncture and lacerations during surgery

22:04

accounted for about 11% of what,

22:06

you know, what the issue when a

22:08

resident was named. And then

22:11

inadequate supervision was about 25%. So,

22:14

you know, those are, you know, published numbers. So those

22:16

are the kinds of things that you see. The other

22:18

thing that you'll see often

22:21

in terms of residents, in particular, failure

22:23

to obtain informed consent, and

22:25

absence of documentation of visiting

22:27

the patient, either pre-procedure or

22:30

after the procedure, and

22:32

absence of communication that's documented or

22:34

inadequate communication between the care team

22:36

members. And so those are some

22:38

pretty, you know, when

22:40

residents get sued, as surgical residents

22:43

get sued, correct that, those are

22:45

the big issues, right? It might

22:47

be a technique, but a lot

22:49

of it has nothing to do

22:51

with the actual surgery itself. It's

22:53

really the pre-evaluation, the discussion, and

22:55

the post-followup. And then the documentation

22:57

of that, of what you did when

22:59

you did it, because what we see, if

23:01

it's not documented in the medical record, it

23:04

didn't occur. And we have cases like that,

23:06

that, you know, where unfortunately residents, you know,

23:08

are grilled, you know, well, yeah, you know,

23:10

this is my standard practice, and of course

23:12

I'm there every, you know, two hours, whatever

23:14

it is, well, jeez, there's no documentation for

23:17

12 hours. So did you really go see

23:19

the patient? So there, you know, and that's

23:21

what, what plaintiff's counsel will be hanging their

23:23

head on. I think

23:25

that that leads into, you know, probably

23:27

the most important question that

23:29

we'll talk about today is, you know, how can

23:31

we behaviorally kind of set ourselves up for as

23:34

much success as is possible, right? If, you know,

23:36

50 to 75% of us are eventually gonna

23:39

get sued in our careers. Ideally, I think

23:41

most of us would like to prevent that, and we'd like to be

23:43

in that 25% minority that doesn't. So

23:46

what are some best practice, you know, methods

23:48

to try to avoid being involved in these?

23:50

Or if you are involved, you know, to

23:52

try to protect yourself from as much liability

23:55

as possible by, you know, presumably by doing

23:57

good medicine and trying to avoid this sort

23:59

of situation. happening? Well the easiest

24:01

answer is to change the specialty. If your diet

24:03

risk don't get sued so you're not going to

24:05

be you know named you're not going to be

24:08

about the high number but if you're gonna stick

24:10

with general surgery you know that that's

24:12

your risk it's a high number because there's you

24:14

know high risk for what you're doing. I

24:16

would say that the most important thing

24:18

is to do a really good consent.

24:21

Make sure that your patient knows about the risks

24:23

and benefits and you want to document that you

24:25

want to document a medical record give them the

24:28

opportunity to ask questions. If

24:30

English is not their primary language you want to make

24:32

sure you have an interpreter and that

24:34

that is documented and you really want to

24:36

make sure that you have a it's a

24:38

shared decision-making right as to what what that

24:40

process is going to be and that you

24:42

get buy-in from the patient. Don't be afraid

24:45

to share the big risks right it even

24:47

if the percentage of it happening is small

24:50

you really want to know you know if there's a risk of

24:52

losing a limb don't rely on the

24:55

microprint in the consent form to convey

24:57

that you want you really want to

24:59

share that being as a significant

25:01

risk because you want to make sure that

25:04

the patient is going into the procedure with

25:06

full knowledge as to you know what the

25:08

risks and the benefits are. So number one want to make sure

25:10

that you have a really good robust consent

25:13

discussion and that you document and

25:15

then that leads to number two document document

25:17

document you want to document everything every time

25:19

you see a patient I personally

25:21

absolutely hate auto population and when I

25:24

you know was in defending cases it

25:26

would be a horrific thing when you

25:28

would see the exact same you know

25:30

H&P numbers when you knew darn well

25:33

that the patient was deteriorating or certain

25:35

things were changing but things were auto

25:37

populating so if you got that

25:39

auto population make sure you check to just make

25:41

sure that stuff is right so you want to

25:44

make sure that everything is documented when you go

25:46

see the patient that that is that's documented you

25:48

want to document if the patients express you

25:51

know concerns or questions those things

25:53

are all documented because as

25:55

I mentioned when we were talking about the process

25:57

it here in the state of Washington and in

25:59

King County you might get

26:01

sued two, three years after

26:03

the procedure, and it may take

26:05

another two, three years for it to get through the

26:08

litigation process. And I don't know about you, but I

26:10

have a hard time remembering what I did yesterday. So

26:12

you're going to be asked about what is in the

26:14

record, or

26:18

what's not in the record, most importantly.

26:20

So it's very, very important to document.

26:23

And supervision is a biggy thing that's

26:25

hard for you as trainees to control.

26:28

But certainly if you have questions, that's

26:30

something that you want to make sure

26:33

that you feel comfortable expressing and having,

26:35

don't be afraid to speak out, don't

26:37

be afraid to question things because it's

26:39

the ads that your gut might

26:41

be right on. So again,

26:44

those are the big things. And if you make

26:46

sure that you do all the really good communication

26:48

with your patients, patients that like their doctors don't

26:50

sue their doctors. I mean, that's the reality. I

26:53

mean, you laugh, but it is absolutely true.

26:55

Statistically, if you've got a good rapport with

26:57

your patient, if they like you, they're not

26:59

going to want to sue you. That's

27:01

great. I mean, and again, it goes back

27:03

to being conscientious and ideally a

27:06

good surgeon, right? Is a communicative

27:08

one. We all make mistakes, but if we're

27:10

talking through the odds of those mistakes with

27:12

our patients and we consent them for surgery

27:15

and talking to them once things

27:17

happen, then it sounds like

27:19

that's pretty effective potentially in preventing some of

27:21

this stuff. I've heard a

27:23

little bit about apology laws. I think

27:25

I've seen them called where you

27:27

don't necessarily get dinged for expressing regret that

27:30

something happens to a patient. Is

27:32

there something or a script that either

27:34

of you recommend that residents or attendings

27:36

for that matter use when

27:38

something has gone wrong? If I have a

27:40

patient with a perforation or a complication after

27:43

a procedure that I was involved in and

27:45

I'm taking care of them for that complication,

27:47

should I apologize for it happening? Is there

27:50

wording that we should avoid to

27:52

avoid potentially bringing

27:54

litigious things into play?

27:57

How do we best communicate? that

27:59

we've made a mistake without necessarily

28:01

opening ourselves up to these lawsuits?

28:04

So that's a really good question. And I will say the

28:07

first thing is you need to default to

28:09

your institution and what their policy is, right?

28:11

So every institution is going to have different

28:13

policies, every state's going to have different rules

28:16

in terms of, or even if they have

28:18

apology rules and what those

28:20

rules encompass. I will say

28:22

at the university, we have very

28:24

particular guidelines that we ask the

28:26

attendings to do the disclosure of

28:28

the policy. We don't put that

28:30

on the residents. We ask that

28:32

the residents confer with their attending

28:34

about the issue and that all

28:36

of the communications from that

28:38

point forward would come from the attending.

28:42

That being said, yeah, the words that

28:44

we like to hear are, I'm

28:46

really sorry this happened to you

28:48

and we're going to investigate the cause

28:50

or we're going to investigate what happened

28:53

and how it happened. And

28:55

we will get back with you. We try

28:57

to keep the communications open. Again,

28:59

default to your organization because at

29:01

the university we have a very

29:04

robust, we call the CRP, communication

29:06

resolution program, where we really promote

29:08

transparency with our patients. We

29:10

really promote the disclosure conversation being

29:12

upfront, taking care of their bills.

29:15

We don't bill them if there

29:17

was medical error. But

29:20

again, that's institution specific. But in terms of the

29:22

apology itself, you don't want to say, I'm sorry

29:24

I screwed up. Boy, I really, I got a

29:26

bad day. Those

29:29

are words you want to avoid. But it's OK

29:31

to absolutely want to do a lot of listening

29:33

and you just say, I am so sorry this

29:35

happened to you and we will,

29:38

I'm committing to you that we will investigate,

29:41

investigate it. And like I said, from the university

29:43

standpoint, we do that and we will do

29:46

a robust investigation. And then as

29:48

a university, we share the results of that

29:51

investigation with the patient and family. But every

29:53

institution is different. So I really want to

29:55

emphasize that you need to go to where

29:57

you're practicing, go to your risk management group.

30:00

safety group and learn what your

30:02

process is and how your approach

30:04

is to potential medical error. Lisa,

30:07

I was thinking as you were saying that those

30:10

types of investigations like often I think involve the

30:12

resident fellow needing to talk with the institutions or

30:14

some manager and about care and I think that's

30:16

another thing sometimes that residents may not. Either

30:19

you're contacted by someone in the institution that's

30:21

not part of your program and the clinical

30:23

team and so I think it's worth naming

30:26

that there are these sort of institutional structures

30:28

that often need to bring residents

30:30

and fellows in and they're kind of part of

30:33

how the institution works, right? And they're not adversarial

30:35

or they're not putting the resident at risk but

30:37

you know the resident fellows should sort of participate

30:39

and I guess I don't know if you have

30:41

thoughts about that because I think that's worth knowing.

30:43

That's another one to me that's like you get

30:45

a call from an unknown person and what do

30:48

I do here, right? Is this putting

30:50

me at risk as a trainee? That's

30:52

a very good question and a very

30:54

important way to think about this because

30:56

when clinical risk and patient safety get

30:58

involved and I'm only going to speak

31:00

from knowledge of how things work at

31:02

Washington and the fact that we are

31:04

a governmental entity as well. So there's

31:07

a little bit of extra twists and

31:09

turns in here but typically as

31:11

long as we are investigating this

31:13

potential adverse event medical error through

31:16

our quality improvement process, through our

31:18

QI process, anything that we discuss

31:21

or investigate through that process is

31:23

protected. So plaintiff's attorney would never

31:25

get a copy of a standard

31:28

of care review, they would never

31:30

get a copy of interview notes,

31:32

anything like that. And

31:34

I put a huge asterisk there because

31:37

the risk and what is so important

31:39

to emphasize and that you really want

31:41

to work this through your clinical risk

31:43

management patient safety teams is because the

31:45

risk of emailing your buddy, oh

31:48

my gosh I had this really bad

31:50

outcome, I'm so stressed I don't know

31:52

what to do, that's not QI protected.

31:54

So if you end up getting sued,

31:56

that's discoverable and that's going to be

31:58

exhibit A in a plaintiff's case, right?

32:00

So you want to make sure you

32:02

limit your emails, you limit your text, because

32:04

what we find is that, you know, an

32:06

experienced plaintiff's attorney is going to say, hey,

32:08

did you do any text? And they're going

32:10

to confiscate your phone, especially if it's your

32:12

personal phone and you don't want to be

32:14

without your personal phone, while they have the

32:17

opportunity to look through all your stuff, right?

32:19

So you want to keep all of your

32:21

communications surrounding a potential adverse event through

32:23

your clinical risk management team, through your

32:25

patient safety team. So it is protected

32:27

under that very, very important QI

32:29

process. That's, I think, really important

32:32

to hear. I think we're so tied to

32:34

our phones and to communicating with one another

32:36

in that way, that it's really critical

32:38

to hear that we should be cautious

32:40

about what we include in that and

32:43

in those normal conversations that we all

32:45

have about cases as we're training. Yeah,

32:47

I would just say as a general rule, but

32:49

first of all, you want to delete stuff, right?

32:52

Yeah, it'll do it, right? You're not going to

32:54

keep things because it's transitory, right? We're not hiding

32:56

stuff, but just say it's a transitory, so it's

32:58

okay to delete. But I would

33:00

just, you know, it's so easy

33:02

to use abbreviations and maybe have

33:04

your conversations, you know, less than

33:06

professional, but just imagine that that

33:08

is exhibit A and you're

33:10

in a courtroom defending the text that you sent

33:12

to your colleague. And this

33:14

is not theoretical, okay? I

33:16

have defended physicians

33:19

and nurses who have

33:21

had to have copies of their

33:23

texts blown up. And

33:25

even if it's not damaging, it is

33:28

so uncomfortable and it's so

33:31

embarrassing. And it's nasty, it

33:33

sets a stage that

33:36

doesn't need to be there, right? I

33:38

think that a lot of jurors are

33:40

probably more forgiving today as it

33:42

becomes more common than it

33:44

had been when I practiced, but it's

33:46

still, it's not a good look. And

33:48

you don't want to be there with what you wrote,

33:51

blown up on a board or on a screen in

33:55

a public setting and having and being questioned

33:57

about that. That's just not fun. So just

34:00

You know to the extent that you

34:02

can be cognizant about what you're writing

34:04

and then delete it like when

34:06

you're done Delete it right and you just want to

34:08

make sure you want to practice really good hygiene with

34:11

your text Are there any

34:13

important things to consider if a resident is

34:15

working outside their normal position at their hospital?

34:17

For example, I sometimes moonlight in our medical

34:19

ICUs and we have residents who've been let

34:22

at outside institutions Plus we get

34:24

residents who work on our teams who come from

34:26

other programs on rotation Thanks

34:29

Nina. That's a great question And I

34:31

think it points out how important it

34:33

is for residents and fellows to understand

34:36

What their liability coverage is at their

34:38

particular employer or institutions? Our

34:40

residents and fellows here at UW are

34:43

covered by the university's liability insurance That

34:46

covers negligent acts or omissions of

34:48

the residents and fellows of employees

34:51

As long as they're acting in the portion

34:53

scope of their duties and their university duties

34:55

And so for residents and fellows there actually

34:57

may be some other sort of

34:59

unique activities that they want to

35:02

consider For example, trainees

35:04

only do visiting rotations at other institutions

35:06

as part of their clinical

35:08

training program Some trainees

35:10

like to moonlight either in their own

35:12

institution or at another sometimes they want

35:15

to do volunteering types of activities And

35:18

those are situations where it's important

35:20

to understand What's

35:22

the liability insurance coverage when i'm

35:25

Participating in an activity like that. So

35:27

I definitely encourage residents and fellows to

35:29

reach out to your permanent director or

35:31

your GME office To try

35:33

to understand what coverage is For

35:36

these types of activities At

35:38

uw our GME office manages those

35:40

approvals and it can feel really

35:42

bureaucratic like it's a lot of paperwork

35:44

but one of the benefits

35:47

of Our overstayed government is

35:49

that we are accounting for important

35:52

issues including Ensuring

35:54

that either our liability

35:56

insurance covers the training activity or

35:58

if it doesn't doesn't that the

36:01

resident or fellow is aware and

36:03

proceeds with that understanding. Cindy,

36:05

maybe we can kind of close out by

36:08

asking, you know, if trainees undergo

36:10

this kind of nightmare situation and are

36:12

named in these lawsuits and involved, to

36:15

what degree does this go on their record,

36:17

get reported to their board, their programs, you

36:19

know, obviously, you know, sounds like we should

36:21

be talking to our program directors at minimum.

36:23

So the programs will know if this happens,

36:25

but what happens and, you know, what if

36:27

you get dropped from the suit, what if

36:30

you're found liable, you know, all of these

36:32

things. How does this kind of

36:34

play out long term and impact people's careers

36:36

going forward? Yeah, it's a

36:38

great question. You know, I think about it from

36:40

a couple of places. One is, yeah, I think

36:43

it's worth notifying your program director, both so that

36:45

you have a guide through the process as a

36:47

resident or fellow, but also because your program director

36:49

is often going to be asked to, you know,

36:52

do training verifications and things like that. And sometimes

36:54

those have questions like, was the resident named a

36:56

lawsuit? And so we also want to make sure

36:58

that the program director actually knows and can answer

37:01

honestly because that is an important requirement for them.

37:04

I think the other thing that I what I see in

37:06

my role is, you know, when we

37:08

bring on new residents and fellows, which we

37:10

do every year, we do an

37:12

onboarding process, you know, to make sure that they

37:14

can practice clinically in our hospitals. And we'll ask

37:16

questions like this, right? Have you been named in

37:18

a lawsuit? Have you things like that? And

37:21

I appreciate that it is stressful and it's worrisome.

37:25

My rule of thumb that I always offer

37:27

is like the answer honestly, for a

37:29

couple reasons. One is a really

37:31

difficult situation is if the resident fellow checks no,

37:34

and then we pull like MPDB and it says

37:36

yes, right? And then we're saying, hey, what you

37:38

know, what you chipped on this box looks different

37:40

from what I found and helped me explain. And

37:42

I'd much rather just see someone be transparent than

37:44

us have to kind of go back and say,

37:47

why did you misrepresent him or

37:49

worry that someone misrepresented him? I think the other

37:51

thing is, you know, we know these

37:53

things happen, right? So it's not going to be totally

37:55

stunning to see that a resume had been named so

37:57

lawsuit before. I mean, it happens

37:59

with some frequency we understand. And so we're,

38:02

the fact of it alone is not necessarily

38:04

going to be problematic. And

38:06

in fact, we have conversations with trainees who come in

38:08

and say, Hey, at my prior institution, I was involved

38:10

in the case. And then we try to figure out

38:12

how do you get whatever it is, the release time

38:14

to be involved or the support from our side of

38:16

things. So I do want to offer that.

38:20

It's not, I think, better to be

38:22

transparent than have something kind of come

38:24

up later. And I

38:26

think that's the case even if you were named and dropped.

38:29

And often what we'll do is say, you know, on our

38:31

onboarding forums, we'll say, were you involved? And

38:33

then there's a chance to explain it. So you can say, I

38:35

was named early on and I was dropped before the case went

38:37

to trial. Whatever. That's fine. I

38:40

mean, those things happen. I do think there's a separate

38:42

piece to your, to answer your question, which is about

38:44

reporting. And typically in Lisa, I think a few of

38:46

some thoughts about this too. There's some instances where as

38:49

an institution, I believe we have a requirement to report

38:51

to MPDV. And

38:53

I think we really try to make sure that as an

38:56

institution, we are doing that in a

38:58

thoughtful way, such that, you know, we're not

39:00

doing anything unnecessary. I guess Lisa, do you

39:02

have thoughts on that? It's

39:06

hard to say. I mean, it has, we do

39:08

have to report, but I think your point earlier,

39:10

Cindy, is that I don't want

39:12

to de-emphasize saying it's not that big of

39:15

a deal. But as we talked about the

39:17

commonality and, you know, we have become a

39:19

litigious society. So it's, as Cindy indicated before,

39:21

it is, it's ever increasing. And

39:24

so because it's ever increasing,

39:26

I don't, it's not as

39:28

concerning as maybe it might've been

39:30

20 years ago. Now, if you

39:32

come and you say, well, I've had

39:34

five, that might be concerning. But

39:37

you know, given the fact that, that it's

39:39

just not that uncommon in general, it, you

39:42

know, it's something, but it's not, it

39:45

really, it's not a black mark. That's a lot of

39:47

times, especially with trainees, they think it's a black mark

39:49

and they'll never get a job or maybe they even

39:51

think, I don't ever want to practice again. And

39:54

that's the toughest part when you get

39:56

sued as a trainee, because you're just

39:58

starting your career, you know, and to

40:01

be. hit with this right off the

40:03

bat is a horrible, horrible experience. But

40:05

I think if you remember anything from

40:07

this podcast and think about the stats

40:10

and to realize you are not alone and

40:12

those numbers are growing and so you're really

40:14

not going to be alone as the time

40:16

goes by. And there is

40:19

some solace in that. At

40:21

the university, we just started

40:23

a program at the end of

40:25

February for physicians that have been sued that they could

40:27

get some peer support by other physicians

40:29

who have been sued. So we have

40:32

folks who have been there, done that and they're

40:34

there to support our physicians and

40:36

they've walked in those shoes, which is really,

40:38

really nice. And it's

40:40

just kind of nice to know your

40:42

peers have been in this position before

40:45

and nobody's saying it's fun, nobody's saying

40:47

it's going to be easy, but just

40:49

to know somebody else's walk down that

40:51

road is really, really helpful,

40:53

I think. If I

40:55

cannot, I really agree with that. And at

40:57

least I've heard you say that one in

40:59

three physicians will be sued during their career

41:02

and a broader statistic than surgeons per se.

41:04

But I think about that a lot, not

41:06

again, we are a litigious society, this is

41:08

a thing that happens, but it's

41:10

a helpful frame to remember, I think, as a

41:13

trainee that this isn't a reflection on

41:16

your skills as a physician. It's not

41:18

about whether you're good at what you do

41:20

or how much you care because you're so

41:22

invested in it. It's a fact of life

41:24

and the better you can sort of equip

41:26

yourself with knowledge and understanding and to recognize

41:28

that it's not uniquely stinging you out of

41:30

the bad resident. It's part of

41:32

practice and the best thing you can do is

41:34

sort of know it and understand it and

41:37

then be prepared if something does happen. I think that's

41:39

a...it's trying to reframe a little bit of this because

41:41

I think it can be very

41:43

vulnerable otherwise, well, it can be very

41:45

vulnerable regardless, but you can think about

41:47

it a little differently. Well,

41:50

I don't know that there's a better note

41:52

to end on than that. I think I've

41:55

learned a ton from just meeting with you guys

41:57

and talking with both of you over the course of

41:59

preparing for it. for this and hopefully this will expand

42:02

and provide some baseline of knowledge

42:04

for our listeners today about the fact

42:07

that this happens and the fact that there are

42:09

structures in play that can support people through it

42:11

and that there are others who have been there

42:13

before and have gotten through it just fine. So

42:16

I want to thank both of you for taking the

42:18

time and effort to educate us all about this. This

42:21

was incredible for me and hopefully our listeners agree with

42:23

that. Well, again,

42:25

thank you for the opportunity. Really appreciate it.

42:28

Yeah, agree. Thanks very much. Be

42:30

sure to check out our website at www.behindtheknife.org

42:32

for more great content. You can also follow

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42:43

produced by Behind the Knife is intended for

42:45

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42:47

We do not diagnose, treat, or offer patient-specific

42:50

advice. Thank you for listening. Until

42:53

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