Abstract
Physicians are poorly trained in the legal system and do not approach their everyday conversations, documentation, and decision-making with the legal implications behind their actions. While organized efforts through medical societies should focus on malpractice reform, at an individual level, surgeons can best protect themselves from liability by improving upon their strengths: the delivery of quality care. The most effective way to reduce risk for malpractice is to adopt practices that have been shown to reduce patient harm. Efforts to systematize patient safety and the implementation of risk management strategies should decrease the chance of medicolegal claims and improve patient outcomes. This chapter provides an overview of the medicolegal system, typical proceedings of a bariatric surgery lawsuit, liability insurance, and risk reduction.
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Notes
- 1.
Many states still adhere to some degree of a locality standard, while the majority of states have moved to a national standard of care. See, e.g., Liability by locality: Practical standard or outdated notion? (amednews.com, January 18, 2010) (available at http://www.ama-assn.org/amednews/2010/01/18/prsa0118.htm) (accessed April 24, 2012).
- 2.
See 40 P.S. 1303.512. In Pennsylvania, for example, there is a requirement that the standard of care expert has the same or similar board certification. However, there is no similar requirement for a causation expert.
- 3.
See Hamil v. Bashline, 392 A.2d 1280, 1284 (Pa. 1978); Restatement (2d) Torts 323(a) (1965).
- 4.
There are some differences in state law regarding this issue as to employers. For example, New York and Pennsylvania do not permit individual insurance for punitive damages. New York refuses to permit insurability for vicarious liability for punitive damages. Zurich Ins. Co. v. Shearson Lehman Hutton, Inc., 84 N.Y.2d 309, 642 N.E.2d 1065 (N.Y. 1994). In Pennsylvania, an employer can purchase insurance to protect against a damage award for an employee’s conduct that gives rise to punitive damages. Butterfield v. Giuntoli, 448 Pa. Super. 1, 18, 670 A.2d 646, 655 (1995), appeal denied, sub nom., Butterfield v. Mikuta, 546 Pa. 635, 683 A.2d 875 (1996). The authors recommend you evaluate this issue through your local counsel.
- 5.
See Joint Commission standard RC.02.01.01 (2011).
- 6.
See, e.g., N.J. Stat. §26:2H-12.8 (2006), 18 V.S.A. §1852 (2006).
- 7.
See, e.g., Howard v. Univ. of Medicine and Dentistry of New Jersey, 800 A.2d 73 (N.J. 2002) (“The information a doctor must disclose depends on what a reasonably prudent patient would deem significant in determining whether to proceed with the proposed procedure.”).
- 8.
Id.
- 9.
NY CLS Pub Health §2805-d (2006); Ritz v. Fla. Patient’s Compensation Fund, 436 So.2d 987 (Fla.App. 1983); N.H.Rev.Stat.Ann. 508:113; Smith v. Cotter, 810 P.2d 1204 (Nev. 1991)
- 10.
Canterbury, supra.; 40 P.S. §1303.504
- 11.
Greenberg v. Gillen, 257 S.W.3d 281, 282–3 (Tex.App. 2008); Howard, supra. 800 A.2d at 79 (“A plaintiff seeking to recover under a theory of lack of informed consent also must prove causation, thereby requiring a plaintiff to prove that a reasonably prudent patient in the plaintiff’s position would have declined to undergo the treatment if informed of the risks that the defendant failed to disclose”).
- 12.
Second-generation, procedure-specific forms are gaining popularity nationally as they clearly articulate the risks for that procedure and are educational tools for patient discussion. They have an added benefit in that they are evidence that captures the detail of your informed consent process should there be an issue later in a lawsuit or a need to use them in a post-adverse event discussion. Forms have been developed in conjunction with NOVUS Insurance Company that are bariatric specific.
- 13.
Available at http://s3.amazonaws.com/publicASMBS/Susan/Patient%20Safety%20Committee/ASMBS%20policy%20statement%20on%20the%20qualifications%20of%20expert%20witnesses.pdf (accessed April 24, 2012).
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Acknowledgments
The authors would like to thank Todd R. Bartos, Esq., a partner in the Healthcare Litigation and Risk Management Group at Stevens & Lee, for his contributions to this chapter.
James W. Saxton is the chair of the Health Care Litigation and Risk Management Group and cochair of the Health Care Department at Stevens & Lee. He serves on the Board of Surgical Excellence, LLC, and is outside counsel for NOVUS Insurance Company.
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Dallal, R.M., Saxton, J.W. (2015). Liability Reduction, Patient Safety, and Economic Success in Bariatric Surgery. In: Nguyen, N., Blackstone, R., Morton, J., Ponce, J., Rosenthal, R. (eds) The ASMBS Textbook of Bariatric Surgery. Springer, New York, NY. https://doi.org/10.1007/978-1-4939-1206-3_42
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