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Pike v Honsinger was attempt to apply legal definitions to standard of care
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The classic 1898 New York legal case of Pike v. Honsinger was one of the leading cases in American judicial history to discuss and describe the meaning of professional standard of care. It is a historically significant milestone because it followed the then-recent policy decision by Johns Hopkins University to limit medical school admission to only individuals who had an undergraduate degree or its equivalent. Prior to this decision by Johns Hopkins, medical schools were private, for-profit enterprises with no academic standards or admissions requirements.
The Pike ruling is also historically significant because 12 years after it was decided, the Carnegie Foundation issued the Flexner Report, which had the impact of closing half of American medical schools. The Flexner Report led to changes in the standards and structure of North American medical schools, which, at the time, were mostly proprietary schools aimed at profit rather than education.
In historical terms, Pike v. Honsinger was decided in the transition period where medicine, in particular surgery, was seen as a trade rather than a profession. Although it is generally believed medicine was a low-status trade prior to the Flexner Report, that impression is misleading. Status in medicine was correlated with the status of a physician’s patients. Thus, physicians whose patients were among the elite or wealthy had considerable prestige, while physicians of the masses were viewed no differently than blacksmiths, farmers or other members of the working class.
B. Sonny Bal
During the transition from trade to profession, Pike v. Honsinger was an attempt to establish a so-called professional standard of care. In doing so, it created what scholar Sal Fiscina, MD, JD, has referred to as the four pillars of the standard of care — knowledge, skill, diligence and care.
Standard of care
The definition of “care” as described in the Pike ruling is a bit ambiguous. What does it mean to provide “care” within the standard of care? Was the Pike court referring to the caring as opposed to curing functions of medicine? Was the Pike court using the word “care” to describe the overall management of a patient’s condition? Perhaps the Pike court meant to use both criteria when it referred to “care.”
What did the Pike court mean when it said a physician needs to be knowledgeable? In contemporary terms, it probably means the difference between an orthopedic surgeon being familiar with a treatment or procedure, as opposed to being knowledgeable about that treatment or procedure. Familiarity and knowledge are different in concept and scope.
Skill is likely a shorthand reference to clinical competence. In the world of contemporary medical malpractice jurisprudence, knowledge and skill play an important role in determining liability in cases involving new technologies. These concepts give rise to interesting questions, such as “Is someone who takes a brief course sponsored by a manufacturer knowledgeable about a new procedure or simply familiar with it?” “Do some of the new technologies involve skill sets that certain orthopedic surgeons will never be able to acquire because they vary so significantly from the skill sets surgeons were trained in and had developed proficiency?”
An orthopedic surgeon can be exposed to surgical malpractice liability for failing to use diligence under a number of circumstances. First, diligent patient selection requires proper indications for surgery. Contraindications to the operation must be recognized, and a diligent surgeon will obtain necessary consultations before operating. Second, a diligent surgeon will be able to timely detect complications from surgery, i.e., he or she will be aware of and be able to recognize risk. Third, if a complication does occur, a diligent surgeon will know how to mitigate damage, by timely intervention or patient referral.
In analyzing what constitutes an orthopedic surgeon performing surgery diligently as imagined by Pike in the contemporary world of medicine, two concepts are important – awareness and action. An orthopedic surgeon needs to be aware of potential complications of surgery. Moreover, this awareness should not only be addressed during the procedure itself, but also recorded within the medical record. Documentation of awareness of risk is a powerful defensive tool.
Action refers to steps taken by an orthopedic surgeon to reduce the risk of the complications. Proper extremity padding during surgery, patient positioning, time-out procedures and personal check-lists that the surgeon may formulate and use are examples of actions taken to reduce risk. “Awareness” and “action” may be the sine qua non of surgical diligence as defined by Pike.
Illustrative case
A 76-year-old man with osteoarthritis of the hip joint was evaluated by his orthopedic surgeon for possible total hip replacement (THR). The patient’s 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 stroke 8 years before and diabetic retinopathy. Due to his 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.
The patient was examined by his internist, who noted the history, and cleared the patient for surgery subject to laboratory EKG results. The laboratory results showed mildly elevated glucose, and an EKG was read as abnormal with non-specific T-wave changes. All other laboratory results were within normal limits. The patient was evaluated for surgery by an anesthesiologist and it was recommended that he have epidural anesthesia.
Lawrence H. Brenner
The patient underwent THR without complications. 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 an acute myocardial infraction. 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 went into full-blown cardiac arrest and died.
What do you think?
A lawsuit was instituted against the internist, anesthesiologist and orthopedic surgeon for failing to refer the patient for cardiovascular consultation and testing before surgery. Setting aside who was right and who was wrong or even the question of who should prevail in the litigation, consider the following questions that this case example raises:
- Assume the ruling is appealed on the issue that the trial court did not apply the proper definition of “diligent.” What criteria would you establish if you were an appellate court to define when an orthopedic surgeon was diligent?
- Was the surgeon in question here diligent enough? Could he have done more? What if he had consulted a cardiologist who said the surgery would carry risks, but that it was okay to proceed as long as the patient was monitored?
- Are there procedures you are familiar with but not truly knowledgeable about?
- For more information:
- B. Sonny Bal, MD, JD, MBA; and Lawrence H. Brenner, JD, are partners in the law firm of BalBrenner/Orthopedic Law Center and are the exclusive providers of loss prevention, risk management and quality improvement services for the Orthopedic Physician’s Insurance Company. Brenner can be reached at lbrenner@balbrenner.com.
Disclosures: Bal and Brenner report no relevant financial disclosures.