Conflicting perspectives arise in the search for justice

B. Sonny Bal

Lawrence H. Brenner

The law, ultimately, is a quest to uncover the truth and render justice consistent with society’s standards at the time. But the truth is often elusive. Witness the rather dramatic arrest of Dominique Strauss-Kahn, the International Monetary Fund chief, in New York for sexual assault. Only he and his accuser know the truth. The rest of us, by piecing incomplete bits of information, must put together the puzzle.

The exercise of gathering evidence will culminate in a jury trial, at least as it appears at the present time. During trial, the accuser will present evidence of guilt, and the accused will attack and refute each bit of evidence as it is presented. But the truth, as it were, will probably never become known. The outcome of a trial is the best that we can do to satisfy our desire for justice and restoration of societal harmony and standards. As Robert Frost wrote, “We dance around the circle and suppose, while the secret sits in the center and knows.”

Conflicting perspectives on the truth

On the subject of the truth, in the classic Japanese film, Rashomon, director Akira Kurosawa presents the theme that the truth, in an individual’s experience and perception, is ultimately relative. Set in the chaotic 12th century Japan, the film tells the tale of a samurai and his wife, who are attacked by a bandit. In the films apotheosis, the bandit kills the husband then engages in sexual relations with the wife.

Kurosawa tells the story from three perspectives – through the eyes of the wife, bandit and the deceased husband (via a mystic). Each tale seems to be an objective version of the events. Both the wife and bandit portray themselves as heroic in their respective stories, despite the moral ambiguity that surrounds their roles.

Conflicting perspectives on complications

Rashomon may be an excellent allegory for the conflicting views of what constitutes an act of professional negligence. Both surgeons and patients relate to an adverse surgical event in different, but seemingly “objective” ways. This is particularly true in orthopedic surgery where the patient’s goal and expectation is to regain function, in whole or in part.

When patients do not regain function but rather become worse because of surgically related complications, they often perceive the orthopedic surgeon was negligent. Orthopedic surgeons, highly trained and possessing sophisticated skill sets, are, in turn, likely to perceive intra-operative injuries as unavoidable and inherent risks of surgery. In the objective world of both the orthopedic surgeon and of the patient, there are times when each sees himself or herself as the victim: the patient as the victim of professional negligence and the orthopedic surgeon as the victim of an unfair lawsuit.

Nowhere is this Rashomonic view more evident than in a debate over what constitutes an acceptable complication of surgery. When plaintiffs and defendants in professional liability lawsuits offer different views over whether a surgical injury was or was not acceptable, the question inevitably arises – acceptable to whom? Is it acceptable to the medical community, to the injured patient, or to society? This conflict is reflected in the question sometimes posed by plaintiff’s attorneys when cross examining defense expert witnesses: “When you refer to standard of care, are you referring to minimally acceptable care, average care, or the care you would want to receive for yourself or a loved one?”

Mental short cuts and human reasoning

Although lawyers and judges have been criticized for many reasons, one common deficiency in the law is that words and phrases are often used as mental short cuts for reasoning. A classic example is the use of the word “complication.” Sometimes this word is used to convey the message that the orthopedic surgeon is not liable because “complication” implies that there was a lack of negligence. Courts have traditionally allowed the admissibility of statistical data to illustrate the rate of injury from an orthopedic surgical procedure. As an example, there is an approximate 1% to 2% rate of dural injuries associated with certain spinal procedures. In a professional liability lawsuit, the defense can introduce this information to demonstrate that this is a known complication. The logic that presumably flows from this data is that the spine surgeon should be excused from liability. What happened is something that does, in fact, happen, albeit in a small but finite percentage of similar cases.

Unfortunately, we do not know if all or some of these dural injuries are the result of negligence. Viewed in a different context, if a driver were to injure someone in an automobile accident, data showing how frequently drivers cause accidents at that intersection would not inform the jury as to whether the driver in this particular case was negligent. To assume that a rate of injury reflects non-negligent conduct may create an unwarranted immunity from liability. Herein, the factual inquiry comes in to play. Whereby parties sift through medical records, depositions and other resources to recreate the event as it were, in order to support their respective interpretations of the so-called truth. But, in medicine and in law, the term “complication” is still prone to being used as a mental short cut for an adverse event that is infrequent, but inevitable. No one should be held liable for complications because we know that they will happen.

Patients view the concept of complication through a different perspective. Some patients may define a surgical complication as an injury that occurs despite the fact that the orthopedic surgeon conducted himself or herself in a reasonable and prudent matter. Such patients may represent a particular personality type or may simply be more informed about the uncertainties of any invasive procedure on the body. But, patients are also troubled by the logic that if a surgical complication is deemed acceptable because it was known to occur, then apparently, the more frequently an injury occurs, the more acceptable it must be. This reasoning is grounded in the well-known mental trap of familiarity; the more familiar the complication (presumably because of the frequency of its occurrence and knowledge of that frequency), the more acceptable it may become to the profession. This logic may in fact lead to a decrease in patient safety, because the more common a surgical mistake, the more liability protection is afforded to an orthopedic surgeon. Humans naturally discount the risk of that which is familiar.

Excusable conduct or negligence

A more complex issue arises when the question is posed – should certain patient injuries be immune from liability even though the orthopedic surgeon made a mistake? This is a particularly provocative question in new technologies where there is a documented learning curve. After all, we cannot expect near-perfect outcomes from any surgeon early on in practice, nor in situations where new learning is involved, such as the first few times an operation is done. And, the literature has documented a learning curve associated with many orthopaedic procedures, and listed the type and frequency of complications that can ensue during that vulnerable time.

The concept of learning curve, at least in legal circles, arose from the early complications related to laparoscopic cholecystectomy, a procedure that was newly introduced to surgeons accustomed to the open technique. After its introduction, many general surgeons unintentionally divided the common or hepatic ducts during surgery. Data showed that these complications almost invariably occurred during the early part of the surgeons’ experiences with the technique.

Were these injuries during the learning curve phase to be considered complications that excused general surgeons from liability? What is the standard that should govern this specific set of complications? If they are inevitable with anything new, as one might reasonably expect, then is informed consent the appropriate tool to immunize surgeons from unnecessary litigation related to learning new skills?

Case example

A 76 year-old man with osteoarthritis of the hip joint was evaluated by his orthopedic surgeon for possible a total hip replacement (THR). The history and physical exam were consistent with end-stage degenerative joint disease, and the decision was made to proceed. The patient had a history of hypertension, poorly controlled insulin dependent diabetes mellitus, a previous cerebrovascular accident/stroke 8 years before and diabetic retinopathy. Due to hip problems, the patient had not been able to walk or exercise in more than 4 years. He was referred to his internist for preoperative evaluation and clearance for elective hip surgery.

The patient was examined by the internist, who noted the history, and cleared the patient for surgery subject to lab results and an EKG that were to be performed at the hospital. The lab results showed mildly elevated glucose, and an EKG was read as abnormal with non-specific T-wave changes. All other lab results were within normal limits. The patient was evaluated for surgery by an anesthesiologist, and it was recommended that he have epidural anesthesia.

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The patient underwent THR without complication. The recovery room hematocrit was 31 and no blood was given. On the first postoperative day, the hematocrit was 25 and the surgeon ordered two units of packed red blood cells. Approximately 2 hours later as the first unit of blood was going in, the patient experienced chest pain and EKG and cardiac enzymes were consistent with acute myocardial infarction. He was transferred to the intensive care unit where he developed severe pulmonary edema requiring intubation. Blood pressure remained labile, requiring increasing pressor support and on the seventh postoperative day, he suffered cardiac arrest and died. A lawsuit was instituted against the internist, anesthesiologist and orthopedist for failing to refer the patient for cardiovascular consultation and testing before surgery.

What do you think? Join your partners in the discussion of these questions on www.OrthoMind.com.

1. Is the above orthopedic case involving the death of a patient an “acceptable complication”?
2. For liability purposes, how would you define “accepted complication of surgery”?
3. For liability purposes, how would you define “unaccepted complication of surgery”?
4. Can surgical mistakes ever be considered “acceptable complication” of surgery for liability purposes?

• B. Sonny Bal, MD, JD, MBA, is associate professor of hip and knee replacement in the department of orthopedic surgery, University of Missouri School of Medicine.
• Lawrence H. Brenner, JD, is on the faculties of orthopedics at Yale University and the University of Southern California and practices in Chapel Hill, N.C. Address all correspondence to Brenner at lb@lawrencebrennerlaw.com