Misbehavior: a Culprit Leading to Adverse Outcomes and Malpractice Claim against General Surgeons

doi:10.21203/rs.3.rs-1539862/v1

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Misbehavior: a Culprit Leading to Adverse Outcomes and Malpractice Claim against General Surgeons

https://doi.org/10.21203/rs.3.rs-1539862/v1

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Objective: Closed malpractice claims against general surgeons were analyzed, to explore causal relationship between surgeons’ behavioral stumble and preventable adverse events.

Methods: 127 malpractice claims against general surgeons were reviewed and analyzed. The frequencies of harmful practice patterns of behavior were estimated and it’s relationship with preventability of undesirable outcomes were assessed.

Results: 132 legal representatives were involved in the 127 malpractice claims against general surgeons. The top ranks of frequency in flawed behavioral practice patterns were lack of adequate communication with patient and/or family (42.4%), lack of assessment of the primary surgical problem before surgery (34.9%), lack of checking or analyzing investigative report in time (24.2%), lack of evidence of compliance with prevention obligations (18.2%) and lack of following and dealing with postoperatively emerging problems (15.9%). In the involved 132 defendant hospital representatives, it revealed 124 (93.9%) with and 8 (6.1%) without behavioral practice errors. Defendants with behavioral violations were more likely to be considered “surgeons’ errors contributed to the preventable complications” (116 out of 124) than defendants without any behavioral errors (2 out of 8). There was a significant difference between the two groups (P < 0.001).

Conclusions: Deficient behavioral practices are ubiquitous in these malpractice claims and play a big role in preventable complications related to general surgery. It is a duty of medical staff leaders or senior surgeons to act as a credible role model ‘in the trenches’ for young generation of surgeons in providing standard of care to their patients mainly through traits of good behavioral practice.

Behavioral Practice

Medical Malpractice

General Surgeon

Patient Safety

Standard of Care

This study was designed to duplicate some findings of Dr. F. Dean Griffen and his colleagues^[1], in which it was demonstrated that surgeon’s disruptive behavior decreases the quality of patient care, has a negative impact on patient safety and should be avoided through educational and training programs.

The inclusion criteria for this study are 127 medical errors lawsuits against general surgeons that have been closed between January 2018 and January 2021, and the data were provided by four professional appraisal institutions located in Nanjing, when one of the last two authors (Shi X and Tang WH) was randomly selected participating in medical damage identification hearing as a member of expert group. Exclusion criteria are the main targets of litigation against other clinical specialists, such as gastroenterology or gynecology. The four appraisal institutions are Medical Damage Identification Office of Jiangsu Medical Association, Medical Damage Identification Office of Nanjing Medical Association, Forensic Expertise Institute of Nanjing Medical University and Nanjing Southeast Forensic Science Service, all of which were located in Nanjing and mainly provided regional coverage such as Jiangsu, Anhui and Henan, although these institutions were nation-wide coverage. Reviewed data typically included both of plaintiff’s and defendant's statement of views, the relevant medical and legal documents, the expert on-site hearing records, expert analysis opinions and appraisal conclusions.

Based on Griffin's work^[1] and the data characteristics of 127 medical error lawsuits collected in this study, flawed behavioral practice patterns in this study were slightly modified as following:

1. Failed sufficiently to communicate with the patient and/or family in operative surgical informed consent, e.g. lack to provide alternatives of “evidence-based” management and their pros and cons before surgery, or lack to re-communicate with the family when an unexpected event emerges and an alternative procedure needed to take during surgery.

2. Failed to adequately make an preoperative or intraoperative assessment of the primary surgical conditions resulting in an unneeded surgery or an inadequate procedure resulting to severe postoperative complications, for example, having a wrong segmental mastectomy for a patient with an nonpalpable breast lump, or taking a total thyroidectomy for a patient with bilateral thyroid nodules without preoperative needle aspiration cytology or intraoperative frozen pathology, and causing a complication of permanent hyperparathyroidism or bilateral recurrent nerve palsy.

3. Failed to adequately assess and control comorbidities before surgery, e.g., malnutrition, diabetes, coronary artery disease or chronic obstructive pulmonary diseases.

4. Failed to meet prevention obligations, e.g. operative report or on-site hearing could not produce evidence to reflect that the protective measures were taken by the surgeon in question during surgery against organ structure injuries such as the recurrent laryngeal nerves or parathyroids.

5. Failed in time to check and analyze carefully investigative report, such as hypokalemia, metastatic signs showed in preoperative imaging, and so forth.

6. Failed to visit a patient as required, e.g. series of closely monitoring of abdomen pain or hypovolemic status.

7. Failed to pursue or have some inside into an abnormal symptom, sign, or investigation report findings during postoperative care, e.g. mistaking the high fever in a patient following gastrectomy as pneumonia without suspecting a duodenal leakage.

8. Failed to consult a relevant specialist and have a support.

9. Failed to adhere to the suitable scope of practice, e.g. implementation of a surgery which the surgeon was not capable of accomplishing, such as bile duct injury repair or complex intestinal fistula repair.

10. Failed to truthfully inform intraoperative complications (hiding the truth), such as accidental rupture of spleen leading to removal of the spleen during gastrectomy surgery, or injury to bile duct, even combined with hepatic artery and portal vein injuries, during cholecystectomy surgery.

11. Failed to adhere to other work routines (except the above-mentioned patterns), including: insufficient handover of discharge note, e.g. lack to inform the patient of a needed radiotherapy following breast conservative surgery plus chemotherapy resulting in local skin cancer recurrence; lack in sharing-decision-making for surgical thyroidectomy causing an injury to recurrent laryngeal nerve in a patient with bilateral thyroid nodules with needle cytology diagnosed of follicle-filled tumors; and performing a gas laparoscopic surgery on patient with diffuse peritonitis and septic shock.

The data for this study are all nominal and ordinal level. Statistical analysis is tested using Fisher's exact probability tests. Any result that did not meet the P < 0.05 was not considered as meeting the level of statistical significance.

This group of 127 closed medical damage claims involved a total of 132 defendant legal representatives (usually, legal person is hospital director in China), there were 2 claims, respectively, filing against 2 hospitals, and 1 claim against 4 hospitals at the same time. Of the 127 claims, 51 plaintiff patients concerned (40.1%) died. Of the 132 hospitals, 124 (93.9%) were involved in behavioral errors (Table 1). The top 5 ranks of behavioral errors were lack to adequately communicate with patients and/or family members (42.4%), lack to provide a properly preoperative assessment of main surgical conditions (34.9%), lack to check investigation report findings in time (24.2%), lack to meet prevention obligations or lack of evidence of compliance with prevention obligations (18.6%), and lack to follow and deal with postoperatively emerging problems (15.9%). Among the 132 defendant hospitals, there are 124 (93.9%) with and 8 (6.1%) without behavioral deficiencies. If behavioral deficiencies occurred, proper diagnoses or adequate treatment were more likely to fail (93.6% [116/124] versus 25% [2/8] of cases without behavioral deficiencies, P < 0.001).

Table 1

Pattern and Frequency of Behavioral Errors^⇐
Patterns of Behavioral Errors	N	%
Lack to sufficiently communicate with patients and/or family members	56	42.4
Lack to adequately assess primary surgical conditions before surgery	46	34.9
Lack to adequately assess and treat comorbidities before surgery	6	4.5
Lack of evidence of compliance with prevention obligations	24	18.2
Lack to check or analyze investigative report in time	32	24.2
Lack to visit or inspect a patient as required	3	2.3
Lack to track problems that emerged after surgery	21	15.9
Lack to obtain a support from a relevant specialist	13	9.9
Lack of adherence to the suitable scope of practice	6	4.5
Lack to truthfully inform intraoperative complications	6	4.5
Lack of adherence to other clinical practices (other than those described above)	21	15.9
At least one problematic pattern involved	124	93.9
Total number of hospitals involved	132
*The sum of the percentages was > 100% due to multiple behavioral errors made by the defendant general surgeons.

According to the conclusive reports made by expert groups in medical damage identification hearing, it has been noted that in many cases there are multiple behavioral errors. 5% (7/132) of defendant legal representatives had 4 or more errors, 9% (12/132) had 3, and 52% (62/132) had 2. Only 6 per cent (8/132) of defendant legal representatives were not found having fault in surgeon’s behavioral practice.

Behavioral deficiency or violation of behavioral practices, also known as insufficiency of caring or dereliction of duty, refers to that the health provider fails application of diligence, vigilance, and/or commitment of time at the surgical caring aspect^[1]. It is reasonable to consider that questionable behavior has a negative impact on correct application of the possessed knowledge and/or technology and may contribute to a delayed diagnosis or inadequate treatment contributing to an unfavorable outcome (such as a complication or death). Unfortunately, the importance of surgeons’ behavior is not well recognized in some area in the world until now.

This study confirms some findings of Dr. Griffen^[1] and shows that the behavioral problems that fell among the above-mentioned patterns are extremely common, with 93.9% of the related defendants involving at least one type of behavioral fault, and most of the related defendants have multiple fault of behavior. The results also show that surgeons with behavioral fault is more likely to lead to poor outcome and litigation than those without behavioral fault.

Moshe Schein, a famous contemporary surgeon, suitably stated that: the common problem with surgical litigation is not what surgeons do in the operating room but outside it that hurts their patients^[2]. Taking the top 5 frequencies of behavioral errors of this study into account, except the fourth one (in a descending order), the rest 4 are typically represent non-operation specific errors. In other words, most of the deficiencies of behavioral practice may occur in other medical specialties, and indicate that we need pay more attention to behavioral patterns in care in future and seek practical solution to try to improve our care quality. In our point of view, the importance of behavioral patterns in medical care should be emphasized and repeated ad infinitum, something like training our children to behavior well or have good manners. However, more importantly, as kids tend to imitate their parent’s behaviors, it is a duty of our medical staff leaders or senior surgeons to act as a credible role model ‘in the trenches’ for young generation of surgeons^[3] in delivering standard of care to their patients mainly through traits of good behavioral practice, such as diligence, vigilance, and commitment of time.

Standard of care is a broad concept and can be applied to nonmedical and medical unfavorable outcomes. In surgery, it can be defined as the care that an another reasonable surgeon would take to prevent an adverse event to another in the same medical context^{[4, 5]}. However, the determination of standard of care in Medical Malpractice Identification is sometimes a hard task for expert witness. "Treating each patient as one of our loved persons or family members, or even ourselves" is one of the most famous clichés in clinical medicine. Should the concept be used today as one of the standards, in some extent, in Medical Malpractice Identification, to measure the quality of care provided by a surgeon? In this way, the identification of so-called disruptive behavior or behavioral violations, that is, whether the medical aspect has delivered the standard of care, can be simply understood, in some extent, as in the same situation, when the person lying on the sickbed was a member of the relatives (parents, wife or children) of the surgeon in question, whether he in the case will commit the medical malpractice. If the surgeon in question makes the same mistake in the face of his own loved one, this fault is called unpreventable, and vice versa.

Ethics approval and consent to participate: Not applicable.

Consent for publication: Not applicable.

Availability of data and material: Yes, see attached excel file.

Funding: no funding

The authors declare that they have no competing interests.

Authors' contributions: FX and SX carried out data collection and analysis, and wrote the main manuscript text. TWH gave some instruction and reviewed the manuscript. All authors read and approved the final manuscript.

Acknowledgements: Not applicable.

Griffen FD, Stephens LS, Alexander JB et al. Violations of behavioral practices revealed in closed claims reviews. Ann Surg, 2008, 248(3):468–74.
Rubinstein A, Schein M. Dealing with patients, families, lawyers and yourself. In: Schein M, Rogers PN, Leppäniemi A, Rosin D, eds. Schein’s Common Sense Prevention and Management of Surgical Complications. Shrewsbury, tfm Publishing Limited. 2013:186-8
Stahel PF. Blood, sweat and tears: becoming a better surgeon. Shrewsbury, tfm Publishing Limited. 2016:177, 247.
Strasberg SM. Biliary Injury in Laparoscopic Surgery: Part 1. Processes Used in Determination of Standard of Care in Misidentification Injuries. J Am Coll Surg. 2005; 201(4)598–603.
Choctaw WT. Avoiding Medical Malpractice: A Physician’s Guide to the Law. New York, Springer. 2008:20.

No competing interests reported.

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Misbehavior: a Culprit Leading to Adverse Outcomes and Malpractice Claim against General Surgeons

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