MDNews - Long Island

MO S T PATIENT S U N D E R S T A N D that no surgeon can guarantee a perfect outcome and that undergoing surgery c o m e s w i t h t h e potential for risks and complications. This, however, does not stop them from seeking out an attorney when the compli- cation occurs to them. A common theme in the defense of a surgeon whose patient sustains an injury during surgery is the "known complication" defense. In other words, the patient knew and accepted the risk prior to surgery. Understanding this, the lawyer for the plaintiff often chooses to focus their case on whether the defendant physician took the necessary steps to not only prevent injury but also detect the injury intraoperatively. Depending on the applicable statute of limitations, a pla intiff ca n initiate t hese lawsuits yea rs later, when t he surgeon will not specifica lly reca ll the details of the surgical procedure at issue. Thus, the surgeon will often rely on the operative report to support the defense that he or she took the appropriate steps intraoperatively to mitigate the risk of injur y. Unfor tunately, ma ny times, physicians will not document routine steps ta ken intraoperatively, even if those steps are critica l to minimizing injur y to the patient. Of ten, surgeons feel that because these steps are routine and occur during every surgery, they do not have to document them. Without suppor ting documentation, however, the plaintiff 's law yer will cha llenge the defendant physician as to how they can be certain that they did not ta ke short- cuts during this surgery. The response to this has historica lly been to rely on "custom a nd practice" to suppor t the position that the critica l steps of sur- ger y were performed despite a lack of documentation or recollection. "CUSTOM AND PRACTICE" "Custom and practice" is analogous to habit or routine, i.e., I always wear a blue tie on Tuesdays; therefore, I know I wore a blue tie on Tuesday, Feb. 2, 2010, even though I do not specifically remember doing so. Generally, New York trial courts have allowed physicians to rely on "cus- tom and practice" as habit evidence to support an inference that they acted the same way in the case at issue. However, New York appellate courts have recently started to limit a defendant physician's ability to rely on this type of evidence to establish what the physician did in the specific situation at issue in the case. In recent cases, the appellate courts held that habit evidence is not admissible unless the surgical step was so routine that it did not vary from patient to patient. Thus, for a physician to rely on custom and practice evidence to support the defense, it must be "routine, without variation from patient to patient " (Guido, 190 A.D.3d at 54). These recent cases demonstrate that the courts are limiting the ability to rely on habit evidence in medical malpractice cases. This underscores the importance of documenting the key steps taken during a surgery to limit surgical complications from occurring. It is not enough for a defendant physician to testify that he or she performs hundreds of the same pro- cedures; the physician must testify that the procedure does not vary from patient to patient, and is routinely performed in the same manner in ever y patient. Should the procedure not warrant such testimony — if it does vary from patient to patient — then it is vital that the phy- sician prepare a detailed operative report documenting what transpired during a surgery. While it may be burdensome to dictate all steps taken intraoperatively to mitigate the operative risk to the patient, it is better than the a lternative of not being able to defend the care rendered if a lawsuit ensues. ■ Partner Daniel L. Freidlin is an attorney at Martin Clearwater & Bell LLP, where he focuses his practice on the defense of medical malpractice matters. For more information, visit mcblaw.com. The Role of a Detailed Operative Report in the Defense of the Surgical Complication Case BY DANIEL L. FREIDLIN, ESQ. M D N E W S . C O M /// M D N E W S L O N G I S L A N D ■ 2 0 2 2 L E G A L E A S E ❰❰❰❰❰ 1 3

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