Surgical error: The difference between mistake and complication

One of the benefits, or aberrations, depending on your point of view, of the fee-for-service model is that we surgeons are remunerated for correcting our mistakes and complications.

At first glance this seems wrong. But perspectives differ, and when a doctor has to deal with serious, undeserved complications and is self-employed he deserves to be compensated adequately.   So what really is the difference between the two?

A complication may be described as an adverse event caused by pre-existing factors that were outside the doctor’s control.  Patients are not the same in health, habits, immunity or healing power, and have varying susceptibility to complications.  A mistake, however, assumes there was a lapse of either quality or control by the surgeon out of keeping with normal expectation.

There are many examples.  During thyroidectomy, injury to the recurrent laryngeal nerve may cause permanent hoarseness.  If the surgeon does not find the nerve and injures it as a result, this is a surgical mistake.  If he does find it, preserves it, and the nerve loses its blood supply and a palsy results, this is a complication. If tumor invades the nerve and it has to be sectioned, this is a complication.

When an intercostal chest drain is inserted through too low an intercostal space and injures the diaphragm or liver, this is clearly a surgical mistake.  If it is inserted in the normal location, and still injures the diaphragm or liver, this is a complication.  If however a chest x-ray taken beforehand shows an elevated diaphragm, the complication deserves to be considered a ‘mistake.’  The doctor should have known.

A misplaced suture through the rectum during a hysterectomy, and the resulting disaster in all its complexity is a mistake more than simply a complication.

So who cares?  As long as surgeons operate, complications will occur.  Insurers, hospital managers, healthcare systems have highly vested interests in limiting both complications and mistakes, as do doctors.  We remember these long after our successes are forgotten.  So do our patients.

Malpractice lawyers are very interested in the difference.  Here is an excerpt from the main webpage of a medical litigation practice:

 

Whether a surgical complication is the result of medical malpractice is often a complicated question. Therefore, it is critical to contact a medical malpractice attorney with the knowledge, skill, and dedication to effectively prosecute your case.

 

The message I get from this is that lawyers will fall over themselves to show that a complication was in fact a mistake worthy of financial retribution.

A doctor with a higher incidence of mistakes may profit from his relative lack of skill until the general population wises up to the fact and goes elsewhere.  Yet surgeons who tackle more difficult surgery will have more complications and should not be penalised for dealing with them.

Is the fee-for-service principle the real problem?  Should there be a global fee that covers all possibilities and eventualities? I don’t know.

There is one critical area however that clearly distinguishes the two – that of informed consent.  If a patient is not warned of possible complications beforehand, any complication is in my opinion a mistake, and the surgeon should face the consequences.

And yet with surgical error, as with human error, there are still gray areas.  Things go wrong. Every surgeon knows that it is simply a matter of time before the next complication or mistake.  As for apportioning blame, often the only person who knows what really happened and why is the surgeon himself.

Martin Young is an otolaryngologist and founder and CEO of ConsentCare.

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  • Vox Rusticus

    Dr. Young, the issue of complications becoming “mistakes” only because they are not specifically mentioned among the list of many possible complications to a procedure begs a more logical foundation than mere assertion. In most preoperative counseling, a list of possible complications are usually discussed, but not every possible complication, especially very remote ones, can be practically itemized; it simply isn’t possible. But you suggest that those then become surgical “mistakes.” That doesn’t follow; they are simply unnamed complications. Retroactively assigning them significance as complications that must be specifically presented is in a sense dishonest and not reasonable, unless the complication is generally recognized as significant enough that it always be presented before every surgery.

  • http://skepticalscalpel.blogspot.com/ Skeptical Scalpel

    A thoughtful take on the difference between mistakes and complications, but I disagree that any complication not warned of beforehand is a mistake. It is impossible to list all potential complications in an informed consent discussion.

    A very good book on this subject is “Human Error” by James Reason. He uses different terms while describing much of the research on this topic.

  • http://www.consentcare.net Martin Young

    I accept your points, and agree every possibility cannot be covered. But what would the ‘reasonable’ doctor warn about? There used to be a guidline that only complications with an incidence of more than 1% must be detailed, but that protocol is no longer adequate. Remember the lawyers are very interested here. A well-taken and documented consent will show due care by the doctor, and will have some sort of statement saying that no list can be comprehensive. So, presence of a detailed consent, while perhaps not specifying an obscure complication, makes it just that. No consent, or inadequate consent = mistake in my book.

  • Primary Care Internist

    why not just do what lawyers and banks do, and have a 50-page fine-print document that spells out every complication of the given procedure, ever documented even if 0.0001%, have the patient sign, have a witness, have a notary present and sign, etc.

    we could even have a “global” form encompassing every surgical procedure, so one-size-fits-all speeds up the process of “disclosure” and “consent”.

    I remember when i mortgaged my home within the span of an hour i signed like 300+ pages of documents. Yeah, like i really read those. But you can bet if i contested any terms after the fact, banks and their lawyers would wave my signature in my face.

  • Dr. J

    Soon enough every doctor will have a lawyer and a film crew that never leave their side while they work.

  • Marc Gorayeb, MD

    The CEO of “ConsentCare” should be suspected of having a financial conflict of interest until proven otherwise. How else can one explain the logical inconsistency of equating an incomplete informed consent process with a surgical mistake?
    There are two issues that have been conflated here: medical mistakes and legal negligence. It may be appropriate to argue for an exhaustive and comprehensive informed consent process to avoid legal liability, but it may not be appropriate to equate its absence with negligent medical care. As the respondents have stated, physicians may appropriately use their judgment regarding the extent of the consent process required in any individual case. It is not an a priori medical mistake to exercise one’s judgment in the provision of information for consent. The surgical examples given by the author to make his point are inapposite in this regard.

    • pj

      “Talking one’s book” perhaps?

      Good pickup on that.

  • Albert Grey

    Except for wrong site, wrong patient, wrong procedure surgery, any mistake could easily morph into a ‘complication’ when the only witnesses are the participants in the event.

  • PAULMD

    “respondents….a priori….provision of information….inapposite in this regard…”

    Marc…..are you a lawyer as well? Starting to sound like Matt (or my kid brother.) Or have you been watching reruns of Perry Mason? :)

    A combined MD/JD degree may be the wave of the future…with an undergraduate degree in filmography.

  • http://www.consentcare.net Martin Young

    Dr. Gorayeb.

    Where I practice failure to take fully informed consent is a human right violation. That is not to say that our doctors do it very well. Too much detail for many patients may be a problem for the reasons you have given. But analysts of medical error take those reasons into consideration.

    I cannot understand doctors who do not embrace the principles and facilitation of informed consent. Their motives have to come under scrutiny. I try to treat my patients in the way I myself would want to be treated. Any other way is just not good enough.

  • Ed Montell

    Martin, thoughtful piece, but like Marc Gorayeb I was disturbed by your failure to reveal the financial conflict inherent in being CEO of “Consent Care.” Your response to him failed to address that issue. As you said in your limited response “motives have to come under scrutiny.”

  • http://www.drmartinyoung.com Martin Young

    My apologies for that omission in my reply. But as a regular contributor to KevinMD my interest in informed consent has always been declared at the end of each post, as in this instance, and I saw no need to elaborate on what I thought was an obvious statement. Many of my posts relate to the topic of IT enhancement of either medical practice or ethics in some way. I still stand by my opinion. I would like to know why the responders attack the messenger in this instance, rather than the message itself.

    I am founder member, developer and prime initiator of ConsentCare, having seen the potential for transforming healthcare through the consent process. As for my financial interests, ‘CEO’ may rather glamorise my position, being as I am a non-salaried CEO of a two person startup company yet to earn any money.

    Would I like to see more doctors sign on to ConsentCare? Of course. We need the feedback and the user base. I would like to see all patients, not only mine, treated with full disclosure. Would it have any financial benefit to me at this point? No. My intention has always been that doctors use ConsentCare without charge. So another 1000 doctors signing on would make no difference to my position. It may however stimulate the wider interest that all start-ups desire, and that may lead to other things.

    I’m sure many surgeons will feel threatened by this. And that is because the traditional argument – “There’s no time” – no longer applies to informed consent. ConsentCare and other initiatives like it have taken away that argument. Here is some more of our thinking http://medicalexecutivepost.com/2011/03/08/about-consentcare/.
    I saw a widely acknowledged problem, have developed a solution, and make no apologies for talking about it.

    • pj

      Thanx for clarifying. I’m a regular reader of kevinmd and had never read any of your articles.

  • http://www.drmartinyoung.com Martin Young

    An omission I need to correct in my replies to earlier comments: My referral to an unmentioned complication being a ‘mistake’ assumes that that complication would be seen as something a doctor should ordinarily mention before surgery. So the adequacy of the consent is taken into consideration at all times. Omission of a common complication from the consent is a mistake in itself, and here is the error. I don’t suggest that the doctor was surgically responsible, but he/she is ethically responsible for the omission – a mistake. So much malpractice litigation results from this mistake.

  • http://skepticalscalpel.blogspot.com/ Skeptical Scalpel

    I have done a fair amount of defense expert witness work. It is my experience that cases never hinge on the consent alone. Usually it’s a bad outcome and “lack of informed consent” is tacked on to the laundry list of plaintiff’s complaints.

    There is research that shows that patients don’t remember much of what they are told in an informed consent discussion anyway. And they always say that they were told but “didn’t understand it.”

    I was unaware of the connection between the author of this post and ConsentCare. I thank the commenters who pointed this out.

    • http://www.consentcare.net Martin Young

      Exactly!! That is why we see such value in the process of good consent documentation that is in the patient’s possession long before the surgery. It protects both parties.

      Does ConsentCare really pose a threat to your style of practice? And why would that be?

      I don’t see what my position has to do with the strength of my arguments, other than being the target of the desperate last resort of an ad hominem attack.

      This issue has to do with transparency in the doctor-patient relationship. Clearly some doctors want as little of that as they can get away with.

  • Sharon, PT

    At my big teaching hospital, I was given a stack of papers to sign right before my surgery. The receiving clerk just flipped through each page pointing to the lines requiring my signature, with no explanation. Even if I knew what questions to ask, I wouldn’t have, conscious of the long line of patients behind me waiting for their turn. As this was my first operation, my head was swimming. My only concern at that moment was the panic of going under anesthesia and what was awaiting me in the operating room. Everything that followed was based solely on trust.

    • http://www.drmartinyoung.com Martin Young

      Sharon, it should be a doctor’s responsibility to take consent from a patient, not a clerk’s. I trust your surgery worked well for you. But what if it does not? What if your decision was made because you were unaware of the whole story, the risks and complications? Then there is a clear erosion of that trust that is so important between doctor and patient. The rise of medical litigation, patient advocacy initiatives, the ePatient movement is in response to an apparent erosion of trust. Patients perceive it. Many doctors don’t, being stuck in the historic mode of practice that the doctor is always right and should not be questioned. Those times have gone. It does not make my job any easier. But I think it makes medicine safer in the long run, and better for my patients.

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