Posted On: November 28, 2012 by Patrick A. Malone

The Difference Between Medical Negligence and Complication

Like any other endeavor involving judgment, the practice of medicine sometimes brings surprise. Sometimes the surprise is good, sometimes not.

In a thoughtful essay posted on KevinMD.com, Dr. Michael Kirsch contemplates the difference between a medical complication and medical negligence. Sometimes the latter, of course, involves a legal remedy in court for medical malpractice; Kirsch’s piece separates and defines some boundaries.

Kirsch is a gastroenterologist, and just before one of his patients was to undergo a colonoscopy, he asked Kirsch if any of his previous patients had suffered a perforated colon as a result of the procedure. (A colonoscopy visually examines a sedated patient with a long, flexible tube inserted into the rectum to look for signs of colorectal cancer and other bowel problems.)

Kirsch replied that among the 20,000 or so colonoscopies he had performed that, yes, there were a few perforations. A perforated bowel is an unwelcome event—it means the intestinal wall has been breached, inviting bacterial infection and a host of other complications.

In an effort to inform and calm his curious patient, whose sense of timing left something to be desired, Kirsch soldiered on. “I continued the dialogue,” he writes, “in order to place the issue in context for him and his wife so he wouldn’t be spooked before his procedure. We didn’t want a panicked patient leaping off the gurney and high-tailing through our waiting room in a flapping opened-back gown to the parking lot. Fortunately, our discussion accomplished its purpose and his procedure proceeded calmly and uneventfully.”

What he explained to his patient, and now his readers, is that while complications occur and are important, knowing only their number without knowing their circumstances is useless, and possibly dangerous, data. Most highly skilled physicians, he says, probably have more complications in such procedures than others whose numbers are fewer but whose experience is also less.

As he points out, a complication of heart surgery is stroke. A heart surgeon who has attended thousands of patients might have 25 whose surgery was complicated by a stroke. A less experienced heart surgeon might have had only three or four stroke complications. His or her numbers look better, but not when you consider that that surgeon has seen thousands fewer sick people.

We’ve discussed the notion of naked numbers not being particularly helpful in assessing research results and, in more practical application, your medical options. (See my newsletter about NNT—number needed to treat and the blog post “Breast Cancer’s Scary But Fake Numbers.”)

As Kirsch writes, “[C]omplications matter, but numbers can deceive. … a doctor’s higher complication rate may reflect that he accepts more risky and challenging patients that other physicians have rejected.” Although he calls perforation “a terrible event,” Kirsch says, “If your gastroenterologist has never had one, he likely has very limited experience. If this is the case, don’t jump off the gurney. Recognize, however, that a perfect record doesn’t mean medical perfection.”

“Complications are blameless events. They are not negligent.”

We’d add here that a perforated bowel doesn’t mean the doctor wasn’t negligent; it just means that there might be causes other than negligence.

Kirsch illustrates the difference between complication and negligence using a hypothetical patient who’s allergic to penicillin. If the patient denies having an allergy or is unaware of being allergic, and the doctor prescribes penicillin and the patient develops a serious rash, that’s a complication. If the patient has a known penicillin allergy and the doctor prescribes penicillin without ever asking about medication allergies, the rash is a result of medical negligence.

Kirsch concludes with a broadside against the imposition of so-called “quality” measurements of health care, such as pay-for-performance programs, and physician ratings available to the public without context that can, he says, mislead and confuse rather than illuminate. (Rating hospitals on their readmission rates is another example of quality measurement, but for hospitals.)

Although we see merit in many efforts to measure the quality of health care, we do agree with Kirsch’s advice to patients interested in their doctors’ statistics: “Be skeptical that this data is a true measurement of medical quality. In medicine,” he writes, “what really counts can’t be easily counted. Conversely, what’s easy to measure rarely measures up.”

And we’d take it a step further. If you want to check out a doctor’s history and performance, consult your state’s medical licensing board to see if any complaints or judgments have been filed against him or her (some states are better at providing this information than others). These agencies, generally within the state health or consumer departments, are responsible for licensing medical practitioners, monitoring their behavior and imposing discipline. But be aware that a doctor's "clean" history for lawsuits and discipline means next to nothing in whether he or she practices high quality medicine. (But a practitioner with a long string of adverse actions is someone to avoid.)

For a directory of state medical boards, link here.

Check to see if your doctor is board-certified in the specialty he or she is practicing, and for which you are seeking expertise. (See our blog post, “Board Eligible and Board Certified.”)

And always seek a second opinion before a major procedure or if you’re unsure about the diagnosis or the provider. See my newsletter about second opinions.

People interested in learning more about our firm's legal services, including medical malpractice in Washington, D.C., Maryland and Virginia, may ask questions or send us information about a particular case by phone or email. There is no charge for contacting us regarding your inquiry. A malpractice attorney will respond within 24 hours.

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