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When negligence, opinions and expert testimony intersect
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As many of our readers communicated, medical society sanctions against expert witness testimony selectively target expert witnesses who testify for plaintiffs. Injured patients who are denied relief in courts because of equally defective and misleading testimony offered by defense experts cannot complain to professional societies. As readers pointed out, this scenario may contribute to fewer qualified surgeons who elect to testify for plaintiffs. The plaintiffs’ bar, therefore, must rely on less-qualified, non-board certified physicians for expert testimony. As a result, a surgeon defendant may be confronted by a less-than-stellar expert witness testifying against him or her; someone who truly does not understand the relevant standard of care. The defendant’s expert, on the other hand, is free to testify without the fear of sanctions, even if the offered testimony stretches the facts and the standard of care in favor the defendant physician.
Because many readers felt strongly about these observations, we will address the difficulty and risks in criticizing a fellow physician’s care. This is a complex subject, and we will focus on presenting two hypothetical illustrative cases to show readers the practical limitations of how the standard of care is applied to surgical practice, and how a complication can be perceived by one’s peers. The scenarios that follow deal with a rare, but unfortunate complication in hip replacement surgery, i.e., the occurrence of a sciatic nerve palsy, especially when performing surgery through the posterolateral approach. While hypothetical, these situations reflect scenarios that are familiar to surgeons and to lawyers who are familiar with medical malpractice litigation.
Case A
A 56-year-old woman of average height and weight, and an unremarkable medical history has been treated for isolated right hip arthritis for several years by her orthopedic surgeon. Ultimately, the physician and the patient decide that a hip replacement is advisable. The patient, a corporate executive, takes time off and undergoes surgery. According to the operative record, clinical notes and radiographs, the operation is routine and performed flawlessly. The surgeon describes the informed consent process in his notes, and outlines an uncomplicated operation. The informed consent states that nerve palsy is a known risk of surgery. No acetabular screws are used during surgery. Leg lengths are equal, and postoperative records show ideal alignment of all components.
B. Sonny Bal
Lawrence H. Brenner
After the patient emerges from anesthesia, she complains of burning pain in the leg. Workup leads to the diagnosis of sciatic nerve palsy. The surgeon re-checks leg lengths and inspects the wound, and nothing unexpected is found. The patient is prescribed physical therapy, and during follow-up care, a MRI of the spine and hip is done which shows mild degenerative arthritis in the lumbar spine. A year later, the patient has minimal improvement; serial EMG studies show a sciatic palsy, and neurology assessments are not overly optimistic about the chances of recovery.
The frustrated patient faces an altered lifestyle, and has to resign from her job, while she pursues many remedies to help deal with her disability, all to no avail. Ultimately, she wants her records reviewed by another orthopedic surgeon who is recommended by a friend. The second-opinion orthopedic surgeon examines her, and while he cannot find anything specific in the record that suggests medical negligence, he tells her that “the nerve injury should never have happened.” He tells the patient that the literature states such injuries can occur from an errant retractor, or pressure on the nerve or from stretching during trial reductions; and a careful diligent surgeon would ensure these things never happen.
Faced with considerable economic loss and with the criticisms of the second-opinion orthopedic surgeon in mind, and understanding that the possibility of recovery from the sciatic palsy was slim, the patient files a lawsuit alleging medical negligence against the first orthopedic surgeon.
Case B
Assume that the patient, medical history, and social circumstances are the same as for Case A. The patient wakes up with a severe sciatic palsy after an identical hip replacement and component produced satisfactory radiographs and limb lengths. The clinical picture during follow-up and workup and treatments were the same.
A year after surgery, the orthopedic surgeon refers the patient for a second opinion to a colleague. The surgeon believes a second opinion may help the patient cope with the complication. The second-opinion orthopedic surgeon reviews the circumstances, examines the patient and assures the patient that sciatic palsy is a “known complication” during hip replacement. Injuries to the nerve can occur from laceration, stretching, pressure from an instrument, manipulation of the leg or unknown circumstances, he tells the patient. These things can happen, because surgery is serious, and associated with a finite risk, as was discussed with the patient during the pre-surgical discussion. The patient happens to be the unfortunate one in which a serious complication occurred. The patient builds a good rapport, and while she likes the first surgeon, decides to continue care with the second-opinion surgeon, while she learns to cope with her injury.
A few months later, the patient in Case B reads somewhere that surgical exploration of the nerve can sometimes show a neuroma or scar tissue, and that release might help nerve function. The patient identifies some literature suggesting that in some cases, surgical exploration of the sciatic nerve can help, even a year or more after the nerve injury. She implores the second-opinion surgeon to explore the nerve. The second-opinion surgeon cautions that exploration is likely to show a normal nerve, with no benefit from exploratory surgery. Finally, the second-opinion surgeon agrees to re-open the incision and identify the nerve. The sciatic nerve is identified near the insertion of the gluteus maximus tendon on the femur, where it looks normal. As the surgeon dissects further proximally, a complete laceration of the nerve becomes evident, just posterior to the hip joint. Nerve ends are scarred and retracted. Intraoperative consultation with a neurosurgeon and plastic surgeon confirms that no repair is possible.
After surgery, the second-opinion surgeon tells the patient that an irreparable lesion of the nerve was found. He documents that since inadvertent transections of the sciatic nerve are reasonably foreseeable as a risk, the original surgeon did nothing wrong. Relying on this advice, the patient does nothing until a year later, when she happens to mention her story to an attorney at a social gathering. The lawyer, experienced in medical malpractice cases tells the patient that she had a clear case of medical negligence, but since the statute of limitations has passed and nothing can be done.
Discussion
In hypothetical case A, there was nothing in the record to suggest that the surgeon had done anything out of the ordinary. The second-opinion criticized the first surgeon to the effect of “this should never have happened,” thereby leading to the filing of a medical negligence lawsuit. The second opinion surgeon did not choose to testify as an expert, but his assertions to the patient led to the lawsuit.
Keeping Case A in mind, consider the following questions: Should a treating orthopedic surgeon who does not testify against another orthopedic surgeon, but who is critical of a previous orthopedic surgeon’s care, be subject to sanction? Have you criticized another orthopedic surgeon’s care? Is patient care compromised when surgeons are subject to sanction for criticizing another orthopedic surgeon’s care? If you believe an orthopedic surgeon should be subject to sanction for criticizing another orthopedic surgeon’s care, should sanctions for criticism be universal? If not, what standard would you use before sanctioning an orthopedic surgeon for being critical of previous treatment?
Now, turning attention to Case B, do you think the second-opinion surgeon should be sanctioned? After all, the patient relied on his advice that the first surgeon did nothing wrong in severing a nerve, and the patient missed her chance at judicial remedies by letting the statute of limitations pass.
Changing the facts, what if in Case A, the second-opinion orthopedic surgeon was a direct competitor of the first surgeon, and from his prior testimony and writings, it was clear that the second-opinion surgeon knew what he said was incorrect, i.e., a sciatic palsy following a hip replacement does not necessarily mean that “something must have gone wrong during surgery?” Likewise, in Case B, what if the second-opinion surgeon was a friend of the first surgeon and tried to protect his colleague when he told the patient that nothing had been done wrong, even though he saw a complete severance of the sciatic nerve during repeat surgery?
As these illustrative case examples show, the underlying issues of physician criticism of a colleague’s treatment are complex and rarely allow for easy answers. We look forward to a stimulating debate from our readers on these difficult subjects, where the law and medicine intersect.