APPROPRIATENESS OF SURGERY

SUMMARY: Appropriateness of surgical and diagnostic procedures is an often neglected aspect of medical malpractice litigation. A number of diagnostic and surgical procedures are commonly undertaken for inappropriate reasons. Application of explicit criteria helps avoid hindsight bias by Plaintiff experts.

When is medical care "appropriate"?  Arguably when the benefits to the patient exceed the risks by a wide enough margin to make it worth providing¹.^[]

A routine Standard of Care question in a surgical malpractice Action should be, "was the procedure indicated in these clinical circumstances?"  Often Plaintiff and Defence medical experts will offer differing opinions about appropriateness.  Increasingly, those conflicting opinions will be tested against empirical research. 

However, much of the currently available research on surgical outcomes has 2 major limitations:  1) the surgery that is studied has generally been performed under fairly ideal circumstances, and 2) outcomes criteria are rarely what is relevant to patients and physicians, such as health status or function.  There was a need to integrate valid clinical research with consensus opinion by leaders in the surgical field. 

Criteria

A number of diagnostic and surgical procedures are commonly undertaken for inappropriate reasons. 

In 1986, investigators at the RAND Corporation and the University of California at Los Angeles developed explicit criteria for assessing the appropriateness of diagnostic and surgical procedures in a variety of situations².  The RAND approach combines a systematic review of the clinical research literature with the judgment of a multidisciplinary panel of expert clinicians.

The application of appropriateness criteria was initially illustrated for coronary angiography, coronary artery bypass surgery, cholecystectomy, upper gastrointestinal endoscopy, colonoscopy, and carotid endarterectomy.  Subsequently other procedures of relevance to medical malpractice litigation have been added: hysterectomy³, administration of antibiotics after childbirth⁴ and prescription of antisecretory therapy in hospital practice⁵.

Initial results gave cause for concern. In US seniors being treated in the fee for service system, indications for carotid endarterectomy were at best equivocal in two thirds of cases. For upper gastrointestinal endoscopy and coronary angiography the indications were questionable at best in one in four cases⁵ In randomly selected western US hospitals, the proportion of coronary artery bypass surgery that was inappropriate or equivocal varied from 23% to 63%.⁷ In British studies, coronary angiography and coronary artery bypass surgery were performed for inappropriate or equivocal reasons in about half of cases⁸ and cholecystectomy 60% of the time.⁹

Although subsequent research shows that physician awareness and accountability has had some beneficial impact, inappropriateness remains a common problem. 

Medicolegal Application

Application of explicit criteria helps avoid hindsight bias by Plaintiff experts. 

Litigators should be aware that, although various medical authors have questioned the applicability and relevance of this approach to clinical practice¹⁰,  inappropriate surgery remains a potentially viable and powerful Cause of medical malpractice Action. 

The medicolegal application of explicit appropriateness criteria, such as those developed by the RAND Corporation², helps reduce contention between medical expert witnesses and guard against the hindsight bias that is demonstrably common in Standard of Care opinions by Plaintiff medical experts¹¹. 

If the procedure was inappropriately undertaken, failure to Disclose arguably invalidates Informed Consent and opens the door to an alternative Action for Battery. 

Copyright © 2009 Electronic Handbook of Legal Medicine