What To Do About a Potentially Litigious Surgical Patient?

Back to General

It recently came to my attention that a patient on my surgical schedule was making some unusual remarks while signing my consent forms. So naturally, I asked my surgical coordinator, “Well, what specifically did she say?”

According to my surgical coordinator, the patient said, “Oh I bet he’s been sued before, otherwise his consent wouldn’t be so detail oriented. Now, if something goes wrong there will be no way for me to sue.”

Earlier in my career, I may have deliberated about whether or not to do the case. I may have even called the patient and tried to assuage her concerns and manage her expectations.

Of course, I can empathize with people feeling a sense of anxiety surrounding a delicate procedure and even verbalizing some of this trepidation out loud. This is especially true in the case of cataract surgery—eyesight is obviously very precious.  However, I believe most people possess an intuitive understanding that by consenting to surgery, they are entering into a special, if not sacred pact, with their surgeon and that threatening comments are a violation of that trust.

So, while I acknowledge that her comments may have been a manifestation of normal anxiety, or emanated from facts of which I wasn’t aware, I chose to cancel this case. I felt like her focus and energy should not have been on litigiousness before the operation.

The truth is, I have in fact been sued, once before.  It was an extremely difficult process (my heart still goes out to the patient). Even though I didn’t believe there was a deviation from the standard of care, I decided to settle. The patient was lost to follow up, my documentation wasn’t great and the optics of the case didn’t look good.

At the end of the process, I asked my attorney what advice she had with regard to my consent forms and documentation. She told me that some physicians require patients to handwrite a paragraph—separate from the rest of the consent– that re-emphasizes that they understand all the risks involved in a procedure.

Now I require all my surgical patients to handwrite an addendum to the standard consent which states:

“With my signature below, I acknowledge that I have read the consent form, or I have had it explained to me verbally in my native language. I have had a chance to speak to the doctor about all my questions and have received answers to all of my questions. I understand the risks, benefits, limitations and alternatives of the planned surgery.”

Since we have implemented this additional component of our consent form, I have not had any other patient make reference to legal action. The addendum, provides both the surgeon and the patient, with an extra layer of communication and reinforces mutual understanding.

One of the reasons I chose to share this story and malpractice pearl, is to open up a discussion. Where should we as surgeons refer patients whom we learn may be litigious? And do we have a responsibility to forewarn each other about patients that may have these tendencies? In writing, or with a phone call?

To my understanding there is no additional immunity provided to attending surgeons at teaching institutions. Perhaps the prestige of a well-respected teaching hospital may give some liability protection, but not much. Should we refer these types of patients to a local surgeon who is widely regarded as a “top specialist”? Or, is it better to suggest the  patient call their insurance carrier to find another doctor? Can we just leave it up to chance and not provide our fellow colleagues a note of caution?

These are difficult decisions. One thing I am sure of is that we should document the precise language our patients use in our chart notes. If it ever comes to pass that our notes are subpoenaed this will give some protection to our colleagues.

Thoughts and suggestions to this important matter are appreciated in advance.

by Eric Dessner MD

Eric Dessner is a board-certified Ophthalmologist. He owns and operates a private practice in Brooklyn, NY.

Notify of

Inline Feedbacks
View all comments
Would love your thoughts, please comment.x
Send this to a friend