Clinical scenario: Your recent new patient is a 42-year-old female, mother of three children, who presented on referral from one of your primary care colleagues with a one-year history of an enlarging mass in the left parotid region. The patient is first seen by the third-year university otolaryngology resident who is rotating with you for three months to gain more head and neck surgery experience. The resident briefs you on the medical history and findings and introduces the patient.
The patient states that she did not seek evaluation for the mass sooner because she has been so busy with her three children in elementary, middle, and high school. The patient also works part-time as a salesperson at a clothing boutique. She denies pain, facial weakness, headaches, and tobacco and alcohol use. There are no other medical or surgical histories, and the review of systems is otherwise unremarkable. Her concerns center on the risk of malignancy and what that could mean for her family, and, if the mass is benign, how soon she can return to her family and work obligations. Her husband appears to be appropriately concerned about her condition and supportive of having the mass removed.
Examination and Recommendation
Physical examination reveals a slightly overweight female with a mass in the left pre-auricular angle of mandible region. Cranial nerve examination reveals no evidence of any weakness or dysfunction. The skin overlying the mass appears normal, although there is minimal movement of the skin over the underlying mass. The mass itself measures approximately 5 cm by 6 cm with an estimated 4-cm depth, located primarily in the anterior pre-tragal region and extending posteriorly and inferiorly toward the angle of the mandible. It feels firm and reasonably well demarcated. The patient’s neck is negative to palpation for additional masses or abnormalities. The right parotid region is likewise unremarkable.
Magnetic resonance imaging of the head and neck region reveals only the left parotid mass, involving much of the superficial parotid but also a bit of the deep lobe at its maximal depth. Fine needle aspiration cytology is suggestive of a benign mixed tumor (pleomorphic adenoma) of the parotid. No other pathology is noted on these examinations.
Based on the history, physical examination, and diagnostic studies, you make the recommendation to the patient that she consider a left parotidectomy to remove what appears to be a benign tumor. After you have answered all of her questions, and those of her husband, she feels comfortable agreeing to this procedure. She admits to being nervous about the surgery, and you try your best to reassure her with both factual information and personal empathy. You discuss in detail with her and her husband the goals, benefits, and risks for the procedure, and you give her the option of watchful waiting. You especially emphasize the known risks and possible complications of the procedure, and you explain how you would manage them if one or more should occur. After all parties are satisfied with the informed consent, the proper surgical documents are completed and signed. Barring unforeseen medical concerns by her primary care physician in the conduct of his pre-operative evaluation, the surgery date is set.
On the morning of surgery, you again discuss the goals, risks, and benefits with the patient and her husband, and try to reassure her that you will do your best to minimize the risks for a complication during the surgery.
You are an experienced parotid surgeon and feel this procedure will not be a high enough risk to utilize a facial nerve monitoring device. After a safe and uneventful anesthetic induction, you proceed with the procedure, utilizing a 2.5 power loupe for magnification. The third-year otolaryngology resident physician is serving as your first assistant.
After raising the skin flap uneventfully, you begin the dissection along the tragal “pointer” to locate the main trunk of the facial nerve. The mass appears to be quite firm and not easily mobilized anteriorly or inferiorly. Still feeling comfortable with the progress of the dissection, you allow the resident physician to dissect several millimeters of the soft tissue just anterior to the tragal pointer to gain a feel for the proper dissection technique in that region, all the while trying to keep a close watch on the surgical field.
When the resident achieves a depth consistent with your spatial awareness of proximity to the facial nerve main trunk, you take over the surgical dissection and identification of the nerve; however, you are unable to identify the facial nerve after you dissect the region in which it is expected to be located. You continue a slow, but deliberate, dissection to mobilize more of the mass superiorly and inferiorly to improve the exposure of the likely location of the facial nerve main trunk. Both the temporal and marginal mandibular branches of the facial nerve are identified and retrograde dissected; three millimeters of the main trunk before the separation of the inferior and superior divisions, but it is discontinuous with the proximal stump of the facial nerve, which you finally located beneath the tragal pointer. Realizing that the nerve has been transected, you complete the tumor dissection away from the distal branches of the nerve and reestablish the continuity of the nerve using a short segment interpositional graft from the greater auricular nerve.
A frozen section examination of the tumor is reported to you in the operating room as “likely a pleomorphic adenoma.” After the neurorrhaphy is completed, the wound is closed, and the patient is taken in stable condition to the recovery room, you turn to the resident physician and tell him that it is time to speak with the family.
What is your next move? for a discussion of this ethical issue.
Discussion: It is not an easy matter for a surgeon to inform the patient and family about the occurrence of a surgical complication or mishap. In the mid-20th century, the so-called days of “medical paternalism,” such occurrences were often considered “just one of those things that can happen and not the fault of the surgeon.” Since then, perhaps due to both a rise in the incidence of medical liability lawsuits and a better understanding of patient autonomy and informed consent, surgeons have become increasingly reluctant to take responsibility for surgical complications and mishaps, often at the advice of a personal attorney or the hospital system’s counsel.
A sea change in philosophy has occurred over the past several decades, however, as the philosophy of “compassionate apology” has gained philosophical and statutory traction. In other words, an apology from the surgeon can be considered an ethical and professional responsibility.
The spectrum of surgical complications is broad, ranging from anticipated or potential complication through surgical mishap, regardless of a surgeon’s technical conduct, to surgical mistake caused by an error in judgment or technique by the surgeon. There are also other reasons for complications during surgery, including anesthetic complications, adverse medical events, and a previously undetected physical or anatomical anomaly. This wide range of complications may or may not be the fault of the surgeon, but it falls to him or her to bring the situation to the family initially, and then to the patient, for presentation and discussion.
Such discussions, usually held in a semi-private room in the surgery family waiting area, are fraught with potential difficulties, owing to the anxiety of the family awaiting word of their loved one’s status, the physical/mental/emotional state of the surgeon who has just undergone a traumatic event in his or her career, and the necessity to repeat the discussion when the patient is awake sufficiently to understand what is being conveyed. Handling such a discussion appropriately—ethically, professionally, and compassionately—can be difficult for even the most experienced surgeon.
The surgeon could have several potential “scenarios” or explanations from which to choose in the disclosure of an adverse outcome or event to the family and/or patient: “the anatomy was distorted”; “the tumor was bigger/more involved/more destructive than we thought”; “the nerve wasn’t where it was supposed to be”; or, “during the course of the surgery, the facial nerve was separated.” While we do not know how many times these various explanations have been utilized, we do know there is much more scrutiny these days of what the surgeon does and says, and more interest in the issues of veracity and transparency in reporting adverse events that occur during surgery. With no time following surgery to meet with an attorney to discuss the best way to inform the family and patient, the surgeon must be appropriately trained in the proper ethical approach to disclosing adverse events during surgery.
Ethical and Professional Responsibilities
At least two main aspects should be considered in the approach to disclosing an adverse event: one, the obvious ethical responsibility for veracity, compassion, and understanding; and two, the impact of the manner and content of the disclosure and subsequent discussion on the issue of medical liability.
Concerning the first set of professional duties (deontology), the expectation is stated quite well by the American Medical Association Code of Ethics, Opinion 8.12:
It is a fundamental ethical requirement that a physician should at all times deal honestly and openly with patients. Patients have a right to know their past and present medical status and to be free of any mistaken beliefs concerning their conditions. Situations occasionally occur in which a patient suffers significant medical complications that may have resulted from the physician’s mistake or judgment. In these situations, the physician is ethically required to inform the patient of all the facts necessary to ensure understanding of what has occurred. Only through full disclosure is a patient able to make informed decisions regarding future medical care.1
The professional expectation is for all physicians to be honest with patients in matters of complications—surgical complications in this scenario—or place the sacred trust of the patient-physician relationship at great risk. It is very hard to imagine a situation in which a surgeon would willingly deceive a patient regarding the reason for an adverse event during a surgical procedure. It should not be a valid consideration to lie to a patient.
The counter-argument to full and open disclosure of an adverse event, however, is the concern that such a disclosure, if an error in judgment or a technical mistake was the cause, would compromise a surgeon’s defense in a subsequent medical liability lawsuit. Reluctance by a surgeon to be completely forthcoming might result from the advice of a litigation attorney, or could be a natural reluctance to place oneself in malpractice jeopardy.
Thus, there exists a gap between the ethical and professional responsibilities of a surgeon to be completely honest and forthcoming with a patient regarding an adverse event during a surgical procedure and the potential for placing oneself at increased risk for a medical liability lawsuit.
Efforts have been underway for some time to address this gap by passing apology inadmissibility laws in many, if not most, states. A summary of state legislation regarding these “apology laws” can be obtained from the American Medical Association’s Advocacy Resource Center.2 For instance, in the state of Colorado, the following type of apology is inadmissible in a court of law: “Statements, affirmations, gestures, or conduct expressing apology, fault, sympathy, commiseration, condolence, compassion, or a general sense of benevolence.” It is understood that the main impetus behind the apology laws is to promote patient safety by preventing future adverse events through open communication and reporting of errors and other occurrences, discussion and analysis of the causes, and the promotion of professional and systemic improvements.
Increasingly, it appears that a policy of honesty and full disclosure for adverse events has the potential to reduce the medical liability risk for surgeons, in addition to facilitating the proper assistance for the patient who has suffered some negative consequence because of the complication. In some institutions, apology and disclosure are linked with a pathway for financial redress or the off-setting of current and future medical expenses. This model demonstrates both practical and ethical benefits for all parties.
In addition to the primary goal of patient safety, honest disclosure of adverse events and their cause to the patient and family is being viewed from the perspective of how the surgeon presents the information and what is important to the patient and family in the discussion. That is, how can the surgeon appreciate what impact or effect this disclosure has on these individuals, and what is it that they expect the surgeon to provide to them? For the most part, it is very important that the surgeon be sincere and honest in the admission, giving a heartfelt apology—whether it was the surgeon’s fault or an anticipated complication—and indicate what will be done to assist the patient in the recovery process, as well as how the surgeon will work to prevent such an occurrence with another patient in the future. In other words, in addition to the apology, there must also be some positive action that comes out of this unfortunate event.
It must be recognized that very few surgeons are comfortable with disclosing adverse events with the patient and family, let alone giving an apology for a complication or mishap in the operating room. Model approaches and simulated training for surgeons are being developed, based on the premise that apology and disclosure are difficult and must be done well if they are to have the best outcome for both the patient and the surgeon. It is important for the surgeon to understand that the apology/disclosure must be honest and open and conveyed sincerely in both verbal and nonverbal communication. This will be difficult for surgeons whose personalities (read “bedside manner”) are reserved and less than warm, but the capability can be improved through simulation and observation. This capability must also be modeled for physicians in training.
Considering this specific clinical scenario, a number of aspects bear thoughtful discussion. There is, of course, the issue of balancing patient safety with resident surgical education, which is a constant challenge for those in academic medicine and community preceptorships. In particular, keeping a watchful eye on otologic and facial nerve procedures can be difficult and is a skill that seems to improve with experience.
The timing of disclosure of the adverse event or complication to the family is dependent upon the surgeon’s judgment and the conditions of the surgical procedure. In this scenario, if the surgeon had obtained pre-operative consent for a reparative procedure on the facial nerve in the event of a complication, then it would be acceptable to proceed with the repair/grafting before any discussion with the family.
If, however, a surrogate consent was required for an additional procedure not covered in the original consent, the surgeon would be advised to pause the surgery for a short but honest disclosure to the family to obtain the necessary consent, then return to complete the procedures. Because the latter option can be an emotional one for the surgeon—who then has to return to the operating room to perform delicate nerve anastomoses—it seems it would be more effective to include such a possibility in the pre-operative informed consent.
In effect, the surgeon may be required to present multiple disclosures in the course of the peri-operative period—first family, then patient—and the discussions may need to be repeated in order to answer all of the questions and to discuss the surgeon’s plan to assist the patient in the recovery process. There may be additional discussions between the patient and family and the hospital or surgical center regarding the possibilities of financial redress without the need to proceed through a legal remedy.
A successful outcome from an adverse event, whether it is the surgeon’s direct mistake or not, will include the maintenance of a meaningful patient-physician relationship, the best outcome of a rehabilitation/recovery process, a responsiveness to the needs of the patient and family, the resolution of financial redress without a lawsuit, and a full evaluation/analysis of the adverse event to prevent or decrease the chance of future occurrence. In the broad spectrum of honest and open disclosure of an adverse event, the patient and family are the focus, and the surgeon is the facilitator for the best possible outcome.
Dr. Holt is a professor emeritus in the department of otolaryngology-head and neck surgery at the University of Texas Health Science Center in San Antonio.
- American Medical Association. Code of Medical Ethics. Available at: www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics.page. Accessed December 18, 2014.
- American Medical Association. Advocacy Research Center. Available at: www.ama-assn.org/ama/pub/advocacy/state-advocacy-arc.page? Accessed Accessed December 19, 2014.