Case Studies: Malpractice or Bad Outcome?

Ms. Foltz: Obviously, the patient’s safety comes first. Once you’ve got that patient into recovery and gotten things stabilized, then you go out and you talk to the family. But I don’t think there is immediately any need to say who did what within the surgery.

What do you tell the family?

Dr. Lusk: As a pediatric otolaryngologist, I have actually been in similar situations several times. I would not immediately say that a resident was involved unless I was asked specifically.

Dr. Goldberg: It seems to me that disclosing that it was the resident who made the breach of the optic shifts the focus from what’s going on with the patient, and taking care of them, to whole separate set of issues that clouds things. Not that you would try to hide it, but it seems like not the right time to go into that kind of detail.

Dr. Mattox: Our counsel was more aggressive and advised immediate disclosure early on and tell them that, at the time of the incident, the instrument was in the hand of a resident. Emphasize that the resident was competent to perform this portion of the procedure, and that this is a known complication and could just as easily have happened had it been my hand.

Dr. Stankiewicz: The problem with that is, unless you have informed the family ahead of time that a resident will be involved in the surgery, you’re opening up a whole can of worms. That brings up another issue: When we’re teaching residents, do we have to disclose that a resident will be involved in the case?

Ms. Foltz: I hate to have to tell you this, but CMS [Centers for Medicaid and Medicare Services], your favorite federal agency, in February 2005, changed the guidelines for the informed consent requirement. It is now required that, in writing, every individual who is going to participate in the surgery be disclosed. It still hasn’t been put into effect in every institution, and CMS has told us that they don’t know when they are going to start enforcing it. On a bit of a side note, there was a case in Illinois where a resident was actually sued for battery, not negligence, and was subjected to punitive damages because that resident was not part of the consent process and the attending had not advised the patient. If you’re in a teaching institution, you should be telling every patient you have that physicians who are residents will be participating in your surgery.