My patient bled. I got sued.

February 18, 2020
David J. Goldberg, M.D., J.D.

Dr. Goldberg is Director of Skin Laser & Surgery Specialists of New York and New Jersey, Director of Mohs Surgery and laser research, Mt. Sinai School of Medicine, and Adjunct Professor of Law, Fordham Law School.

A dermatologist performed a large excision on a patient without taking a medication history, and the patient experienced progressive post-operative bleeding. Was he negligent? Dr. Goldberg discusses this hypothetical case and the nuances of physician negligence in this Legal Eagle article.

Dr. Surgery performs surgical procedures every day in his office. Because he has such an elderly population base that requires anticoagulant therapy, he no longer stops such treatment prior to surgery.

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He used to explain to his patients that they will have more post-surgical ecchymosis, but now he doesn’t even ask if they are on anti-coagulant therapy.

He recently performed a large excision. The patient did not take any prescription blood thinners but did take high daily doses of garlic and ginkgo. Unfortunately, the patient had progressive post-operative bleeding that led to volume loss and ultimate cardiovascular arrest. A lawsuit was brought against Dr. Surgery. Will he lose this case based on negligence?

Clearly a medication history is important for possible agents that may impair platelet function and increase risk of bleeding. The most common prescription agents that increase risk of hemorrhage or inhibit platelet function used on an outpatient basis include warfarin, low molecular weight heparin, fondaparinux, idraparinux, aspirin, clopidogrel, ticlopidine and dipyradamole.

Prescription and non-prescription nonsteroidal anti-inflammatory drugs are also commonly used and inhibit platelet function. However, the intake of herbal and vitamin supplementation is also common. The four Gs: garlic, gingko, ginseng and ginger - along with vitamin E are commonly used agents that have been implicated in increasing risk of bleeding. Should Dr. Surgery have asked about the intake of such medications?

Complications from bleeding may or may not have legal significance. If the aggrieved patient is convinced his/her physician has been negligent, legal action may be taken against the dermatologist. Any analysis of physician negligence must first begin with a legal description of the elements of negligence. There are four required elements for a cause of action in negligence. They are duty, breach of duty, causation and damages. The suing plaintiff must show the presence of all four elements to be successful with such a claim.

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The duty of a physician performing cutaneous surgery is to perform that procedure in accordance with the standard of care. Although the elements of a cause of action in negligence are derived from formal legal textbooks, the standard of care is not necessarily derived from some well-known textbook. It is also not articulated by any judge. The standard of care is defined by some, as whatever an expert witness says it is, and what a jury will believe.

In a case against any dermatologic surgeon whose patient has bled, the specialist must have the knowledge and skill ordinarily possessed by a specialist in that field, and must have used the care and skill ordinarily possessed by a specialist in that field in the same or similar locality under similar circumstances.

A failure to fulfill such a duty may lead to loss of a lawsuit by the dermatologist. If the jury accepts the suggestion that the dermatologist, by virtue of not asking about medicine intake, mismanaged the case and that the negligence led to damage of the patient, then liability will ensue. 

The dermatologist is expected to perform cutaneous surgery in a manner of a reasonable physician. He need not be the best in his field. 

It is important to note that where there are two or more recognized methods of dealing with the same condition, a physician does not fall below the standard of care by using any acceptable method - even if one turns out to be less effective or more dangerous than another method.

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Finally, in many jurisdictions, an unfavorable result due to an “error in judgment” by a physician is not in and of itself a violation of the standard of care if the physician acted appropriately prior to exercising his professional judgment.

In this situation, some experts may testify that patients should be taken off anti-coagulants; other experts will testify that one must look at the risk benefit ratio of stopping such treatment. The bigger question here is whether Dr. Surgery breached the standard of care by not ever asking about his patient’s medicine intake. A jury may determine that Dr. Surgery was negligent in not asking the question.

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