Leading medical malpractice lawyers explain how published complication rates would see an easier path to justice in notoriously difficult post-surgical cases
Medical malpractice suits emerging from surgical complications can be nightmarish to pursue. The line between a complication and a negligent error is hard to prove in Canada. A leading medical malpractice firm is pushing for a solution though, by taking a lesson from the states.
Richard Bogoroch and Heidi Brown, partners at Bogoroch and Associates LLP, think that Canada needs to follow the US model in publishing surgical complication rates. In the United States, Medicare publishes complication rates for surgeons performing one of eight elective procedures. Though it’s not comprehensive, published complication rates can help demonstrate if a condition arising from a surgery is due to a negligent error rather than a complication.
Imagine you undergo a colonoscopy. A known complication of colonoscopies is bowel perforation, occurring in approximately 1 in 1750 procedures. Your colonoscopy is performed by Dr. X and your bowel is perforated, was the procedure performed negligently or was the perforation just a known complication? Access to publically available complication rates showing that Dr. X’s rate of bowel perforations during colonoscopies is 3 in 1750, significantly higher than average. This information would provide evidence to suggest that the colonoscopy may have been performed negligently.
Regular procedures like colonoscopies, Bogoroch and Brown explained, can often result in complications. Complications can arise in many ways. They could arise from an error on the part of a surgeon, a nurse, or a technological failure. Not all errors are necessarily negligent; there must be a breach of the standard of care. Records are key to determining the nature of the complication, but as Bogoroch and Brown explained, record keeping is spotty at best, often providing little information about what went wrong.
Though it’s frowned upon, doctors regularly make records of procedures weeks after they’ve been conducted. The records are tainted by the fallibility of memory and the lack of meaningful requirements for publication. Bogoroch and Brown think the ongoing transition to electronic medical records (EMRs) will result in better records, but they think publication is the surest way to better pursue justice in these cases.
Published complication rates will allow a comparison of a doctor’s rate of complications to the average rate of complication for a given procedure. This will be beneficial in providing evidence to support a claim that the complication was a result of the doctor’s negligence as opposed to just being a known complication that the doctor could not reasonably avoid.
As difficult as negligence is to prove in complication cases, Bogoroch and Brown are not aware of any case where the obligation to publish complication rates has been addressed. Bogoroch and Brown want to change that.
The numbers exist, at least in Ontario. Health Quality Ontario currently collects data from 32 hospitals measuring the quality of surgical outcomes by measuring indicators like rates of common post-surgical infections, second surgeries to address complications, and hospital readmissions. Those numbers are currently shared within the network of hospitals but aren’t publicly available. It’s Bogoroch and Brown’s view that this must change. They’re not alone either.
One Toronto-based surgeon told Canadian Lawyer that the publication of complication rates could have a wider positive impact on patients’ understanding of surgical risk. Surgeons require the informed consent of their patients, the surgeon explained that a public complication rate for a procedure would mean patients are fully informed. Hospitals, too, can use the information for the annual credentialing of staff.