Ms. Foltz: It is absolutely true that a bad outcome is not enough to prove malpractice. But remember, there will always be someone out there, I guarantee you, who will testify against you and there is nothing you can do to guard against them. My suggestion is if you have an outcome that is not what you expected or desired, the best thing you can do to try and avoid a lawsuit down the road is to talk to the patient honestly and empathetically about what happened.
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October 2006Dr. Kennedy: A recent case that I know of was a very similar injury, where the patient had somewhat more brain damage and they ended up having to turn off the respirator. That case settled for $7.5 million, so it shows that this is not necessarily the way it will go.
Dr. Stankiewicz: In big metropolitan areas you, as the treating doctor, can be in big trouble in a case like this. This particular case was in a very affluent physician-friendly area. In a major metro area, and an outcome like that, you’re going to have some real defense problems.
Dr. Lanza: I would submit that, defensible or not, bilateral removal with the skull base and/or multiple brain tissue removal during elective sinus surgery is well outside the standard of care.
Your patient is undergoing an endoscopic orbital decompression for Graves’ disease. Your assistant is a well-trained senior resident and he is operating while you are observing on the video screen. The resident is removing the bone posterior near the optic canal and he slips and clearly impacts the optic nerve. The videotape is running.
When do you talk to the family?
Dr. Kennedy: I would probably tell the family, while the patient was still asleep, that we are concerned that there was some trauma to the optic nerve. We will have to see how his vision is after he wakes up, but that we do have some concern.
Dr. Lanza: I would devote all my attention to the patient and not think anything about discussing it with the family. I would spend my time taking care of the specific event-awaken the patient, evaluate the vision, and then discuss it fully with the family.
Dr. Mattox: Our approach in situations like this is to get the family informed and on board early on, though obviously not at the expense of taking care of the patient.