SUMMARY: The number of cases that a surgeon or hospital treats per year has a material effect on success. The growing body of evidence can be challenged on methodological grounds but is basically sound for certain conditions. Because community standard of disclosure lags behind research findings, Battery might be considered rather than Surgical Malpractice litigation.
We have previously addressed the roles of surgical volume and hospital volume as factors in surgical skill and patient outcome.
Commonsense says that, all else being equal, those physicians who are more practised at a surgical or diagnostic procedure will have fewer errors and produce more satisfactory results. However, "all else being equal" must be tested. In particular, does physician volume or hospital volume demonstrably result in a better outcome?
The answer 1 [] is a qualified "yes".
Practical PointerProcedures with strong evidence for high-volume benefit:
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For instance, for procedures with strong evidence for high-volume benefit, surgical inexperience causes 1 [] between 3.3 (unruptured abdominal aortic aneurysm surgery) and 13 (pancreatic cancer surgery) excess deaths per hundred cases.
Practical PointerProcedures with weaker evidence for high-volume benefit:
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The growing body of evidence can be challenged on methodological grounds but is basically sound for certain conditions.
This *1 [] careful systematic review of the literature points out weaknesses in the evidence for superior outcome. Because of the design of the studies, a distinction is rarely possible between the effect of physician volume and the effect of hospital volume. There are also large variations in criteria for low volume and high volume such that definition overlap is common - the criterion for high volume in one study might define low volume in another. Moreover, changes in total volumes of a given procedure over the years make analysis and interpretation more difficult and less reliable.
As we have previously indicated, for a few conditions the minimum ideal annual number of surgeries has been investigated. Even for surgical procedures in which a practice effect can be demonstrated, it is generally not known how steep is the learning-curve, that is, how many total procedures is optimal. For example, the relatively common transsphenoidal method of operating on pituitary tumours appears 2, 3 to have a very shallow curve, implying that outcome results will be demonstrably better for those who select a surgeon with a lifetime experience of more than 500 transsphenoidal surgeries.3
Practical PointerUncertainties about the research:
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Because community standard of disclosure lags behind research findings, Battery might be considered rather than Surgical Malpractice litigation
If an operation is required in an emergency, or is so urgent that the patient cannot be safely transported to a bigger centre, the surgeon can only be expected to do his best according to his training and experience.
If, however, the surgery is elective, that patient is arguably entitled to expect a demonstrably better outcome from a more experienced operator.
If the attending physician fails to disclose the outcome benefits of having the proposed procedure undertaken instead by a high-volume practitioner in a high volume centre, consent is arguably void and there may, in the event of poor outcome, be a viable Action for Battery. The case will be stronger if, as commonly happens, the practitioner has only quoted complication rates from studies undertaken at centres of excellence and has not included figures for his own past performance.
The advantage of pursuing an Action for Battery rather than medical malpractice litigation is that, in general, disclosure of the benefits of high-volume surgical or medical expertise probably does not reflect current community standards, and robust supportive expert opinion on Standard of Care may not be achievable.
Counsel should be aware that volume impacts not only surgical technique but quality of postoperative care by the whole surgical team. It is not only intuitive but self-evident that errors are commoner during unfamiliar procedures. Even if the surgery goes well, both medical and nursing staff need to be sufficiently aware of the range of potential postoperative complications.
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