HRA’s Top Litigator Helps a Surgeon Reduce Claims

Challenge

A board-certified surgeon with 20 years of experience who was a well-established expert in colorectal surgery had received an unexpectedly high number of claims. He engaged with Healthcare Risk Advisors (HRA), knowing that HRA has a long and successful history of partnering with individual physicians and hospital systems. He knew that HRA could help him identify opportunities to mitigate risk and improve patient safety by analyzing the underlying causes of the claims.

Response

Peter Kolbert, JD, Senior Vice President for Claim and Litigation Services at HRA, and his Litigation Services Team undertook an exhaustive analysis of the surgeon’s historic cases and methodology. The completed review showed that a number of non-surgical factors had elevated the surgeon’s risk for claims and complicated HRA’s ability to manage his defense.

The analysis determined that, although the surgeon successfully managed patient treatment, the volume of high-risk cases he accepted led to breakdowns in documentation, informed consent, and patient engagement.

The team identified opportunities for improvement in documentation across the following areas:

• Pre-op documentation—lacked documentation of risks related to surgical treatment and nonsurgical options.
• Operative notes—lacked timely and thoughtful notes.
• Post-op follow-up notes—most documentation was completed by residents, not the attending surgeon.

The claims involved known risks that included colonic anastomotic breakdowns, incidental enterotomies with ostomies and a need for multiple surgeries, nerve damage following rectal surgery resulting in urinary and sexual dysfunction, development of recto-vaginal fistula following bowel surgery, and delay in returning a patient to the operating room (OR) postoperatively.

HRA’s audit showed a consistent absence of notes justifying the time frame from a patient’s first surgery until the patient was returned to the OR for a second surgery.

To further assess the surgeon’s situation, Kolbert and his team examined patient testimony and engaged in one-on-one conversations with patients who had brought a suit. The conversations showed a pattern of patients criticizing the surgeon for his lack of willingness to listen to them and then rushing them in the office and the hospital.

The prevailing belief was that if the surgeon had engaged in thorough informed consent discussions and documented his files completely, he could have avoided most—if not all—of the claims.

Resolution

The HRA team called in an attorney to review all of the surgeon’s cases—including the testimony, records, and expert reviews—and discuss each case with the surgeon. They met several times to discuss the surgeon’s charting, communication, and case selection practices, developing strategies that enabled him to create a clearer patient record while simultaneously protecting himself from claims.

Ultimately, the surgeon thanked Kolbert, saying, “You made me realize some things about myself.” Most importantly, the surgeon has not been sued in the past five years.