Part 2: Examining Procedural and Surgical Specialties
APPs get sued for the same issues that physicians do with only small exceptions in the higher risk surgical specialties where they do not perform the actual technical procedures. They often are responsible for recognizing complications and are the first line to rescue patients from those complications.
In Part 1 of this article that appeared in the Advantage Program Insight newsletter (third quarter 2024), we took a high-level view of the conditions driving losses for cognitive, non-procedural specialties. The major allegation was for failure to diagnose or delay in diagnosis of certain conditions. In this article, we examine procedural and surgical specialties recognizing that APPs need to be aware of cognitive failure/delay in diagnosis conditions since they are often the provider to see such non-surgical or post-procedural patients.
For physicians, hospitals and their staff, and for APPs, malpractice claims risk is highly concentrated in several clinical areas. The highest risk specialties are OB-GYN, neurosurgery, ortho spine, and general surgery. There are four elements—duty, negligence, causation, and damages—that must be established to the threshold of “a preponderance of evidence” (more likely than not) by the plaintiff in order to prevail in a professional liability case. The rules can vary by the care site and facts in some states. In all states, the most attractive plaintiff cases are high damage cases with high dollar reward possibilities coupled with clear duty, causation, and a simpler explanation to establish negligence.
While documentation, relationships and communication with patients and families, and paying attention to strong patient safety systems are important to overall patient care, to really impact malpractice claims losses and maintain a stable and affordable liability environment, one needs to understand the highest risk areas and develop strategies to address them.
STEPS IN CLINICAL CARE
When we examine adverse outcomes and claims in procedural and surgical specialties, we find that these steps where APPs are most involved in clinical care are called into question:
Indications: Was this the proper procedure for this given patient and were they informed of the expectations of the outcome?
Informed consent: While the APP can assist in the informed consent process especially with information and education, in most states the final step of affirmation and signature of the informed consent process needs to be completed by the person doing the procedure.
Optimizing the patient pre-operatively: APPs working in surgical specialties have especially prominent roles and opportunities in this area. Determining the required medical pre-operative management and enlisting the resources needed, doing medication reconciliation, ensuring that the post-procedure regimen is appropriate, especially DVT thromboprophylaxis when indicated, and providing accessibility for questions to optimize the patient for their procedure are often the role of the APP.
Technical performance of the actual procedure: While this is slowly changing with the expanding scope of APPs, historically we do not see liability claims for assistants in the OR. The attending surgeon generally is the captain of the ship for such cases, so APPs are not generally sued for technical performance issues individually.
Recognition and Rescue of Complications: This is the single highest risk and most important role for APPs in procedural and surgical cases. Often the APPs are the main contact post-procedure and are the first line at recognizing complications, especially ones that are clustered in these high-risk areas:
- Post-procedural infections. Vital signs are vital, not all nausea and weakness are due to the opioids or anesthesia, and delayed recognition of infections leads to adverse outcomes.
- Post-procedural pulmonary embolism. It is more common than one expects and highly concentrated in this claims subset. A low threshold to evaluate such patients and attention to vital signs is critical to early recognition.
- Post-orthopedic procedure compartment syndrome. When the anesthetic wears off, pain out of proportion and pain on passive motion should be evaluated to rule out compartment syndromes that can cause irreversible damage shortly thereafter.
- Post-procedure neurologic or vascular compromise. Similar to compartment syndrome, persistent complaints post-anesthesia need close evaluation or referral.
It is not malpractice to suffer a surgical or procedural complication in a well consented competent patient, but it becomes more difficult when that complication is not recognized and rescued in a timely manner.
We urge APPs to read their own specialty risks carefully and seek additional education available from Copic and their own professional CNE/CME sources.
Information in this article is for general educational purposes and is not intended to establish practice guidelines or provide legal advice.
Article originally published in 4Q24 Advantage Program Insight.
