A forty-three-year-old woman presented with problems following
ankle surgery. The initial diagnosis was idiopathic avascular necrosis
of the talus. An arthrodesis of the ankle was performed with external
fixation and an iliac crest bone graft. A nonunion developed at
the fusion site, and the patient reported persistent pain and an
inability to bear weight. She sought a second opinion and was told
that the attempt at fusion had failed. The treatment options were
explained to her. She underwent débridement of the nonunion
and a tibiocalcaneal arthrodesis with internal fixation. Postoperatively, the
patient had a solid fusion and was able to bear full weight without
pain. Although ultimately satisfied with the result, she repeatedly
expressed anger about the original care and asked if malpractice
had been committed.
Two ethical questions are raised by this case. What should the orthopaedic
surgeon who provides the second opinion do with respect to the surgeon
who performed the surgery with the poor result, and what should
the surgeon providing the second opinion do with respect to the
patient who had the poor result?
To consider the first question, imagine that Dr. S is a senior
resident and Dr. J is her junior resident. In that situation, Dr.
S’s two main concerns would be protecting future patients
and instructing Dr. J. With these goals in mind, it is easy to see that
it would be ethical for Dr. S to promptly raise questions with Dr.
J about what had transpired in an attempt to instruct and correct.
To the extent that Dr. J could put defensiveness and embarrassment
aside, and to the extent that the problem was caused by ignorance,
Dr. J should appreciate the instruction and be relieved that other patients
will not suffer. To the degree that the problem was caused by a
lack of skill, Dr. S will accept the responsibility for the oversight
and Dr. J will welcome the required supervision. To the extent that
the problem was caused by an unfortunate, unpredictable mishap,
Dr. J will be forthcoming, Dr. S will be understanding,
and both will examine the problem to see what could be learned so that
a similar problem would not occur in the future.
Now, imagine that Dr. S and Dr. J are both attending surgeons, and
their power, rank, status, and reputation are approximately equal.
Dr. J performed the surgery, and Dr. S provided a second opinion.
Most physicians are reluctant to question their fellow physicians.
Few are willing to confront a fellow physician with any remarks
that could be construed as criticism. Many who encounter a patient
with a poor surgical result comfort themselves with the assurance
that sometimes physicians don’t really know what happened,
that there could be many reasonable explanations for the poor result, and
that physicians should not question the actions of peers unless
they observe a pattern of poor practice. The standard of evidence
moves from slight suspicion to one approximating "beyond
a reasonable doubt."
While this response reflects the common and reigning view, the disparity
between the accepted response within residency education and that
among physicians in clinical practice should alert us to an ethical
problem. If the good of patients and peer instruction are
central goals for resident physicians, why do they not hold the
same position of importance for attending physicians? We cannot
fail to notice that during the time that the practicing
physician waits for a pattern of problems to emerge, if something
is indeed amiss many more patients will likely be harmed.
Furthermore, residents who train under either Dr. S or
Dr. J learn either poor clinical practice or to turn a
blind eye to the misdeeds of their peers.
The disparity in response between the training setting and the
practice setting raises two related issues. One involves a justification
for different standards of evidence. The other involves the scope
of a physician’s responsibility.
Slight suspicion or reasonable skepticism are appropriate standards
for intervention with training physicians. Why should there be a
greater requirement for certainty when dealing with peers? We require
proof beyond a reasonable doubt in criminal proceedings because
the legal system will punish (that is, deliberately inflict harm
upon) the guilty. But physicians who are concerned about their colleague’s
medical practice are not pursuing punishment. Typically, physicians
simply want their peers to do the right thing so that patients
are not harmed and the trustworthiness of the profession
is preserved. Because punishment is not contemplated, a substantially
lower standard of evidence seems more appropriate.
Within residency education, senior residents are clearly responsible
for the education of their residents and the well-being of their
own patients as well as those of the junior residents whom they
oversee. After residency training, physicians still have a responsibility
for the education of their peers and the well-being of patients,
even those not under their personal care. We routinely share ideas for
improvements in clinical practice through publication and through
peer-training. Physicians who do not acknowledge this responsibility,
both to the patients who could benefit from the improvements in
medical care and to fellow members of their profession who could become
better clinicians through enlightenment and training, are criticized
for their failure to accept professional responsibility. These attitudes
concede the ongoing duty for peer education.
Historically, physicians have concerned themselves with the great
and small public health issues of sewage disposal, clean water,
inoculation for immunization, obliteration of sources of pestilence
and contagion, and fluoridation of drinking water. Physicians have
identified these issues and have pursued social changes for the
good of all patients. Doctors have also opposed legal incursions
on patient confidentiality (for example, the proposed rule that
would have required physicians to report illegal immigrants), have donated
their care to the indigent, and have offered advice for the care
of patients with complex medical problems. These common behaviors
and attitudes reflect the view that medicine, as a profession, has
a duty to serve all patients and that physicians, as professionals,
have some responsibility to all patients. In that light, it seems
untenable to draw a distinction between senior residents, who have
a responsibility to all of the patients whom their colleagues may
serve, and physicians in practice, who need to concern themselves
only with patients on their own roster.
These considerations argue for the need to acknowledge physicians’ commitments
to peer education and to a degree of shared responsibility for all
patients. They also suggest that in contemporary medical practice
the standard response to a colleague’s error may be flawed.
In this light, it seems reasonable to ask why well-intentioned and morally
upright physicians are reluctant to speak with their peers about
errors.
Because the distinction between the response to residents and
the response to colleagues follows social and institutional demarcations,
the reasons for the difference are likely to be social and institutional.
Through some silent curriculum, physicians learn to abandon the
role of "my brother’s keeper." Instead
of acknowledging a shared responsibility for our fellow physicians’ behavior,
we learn to disown the actions of fellow professionals and to disavow
our suspicions about bad results and unprofessional behavior. Concern
for self-protection is a partial explanation. Doctors have to protect
their referral network; we don’t want others accusing us
of misdeeds; we don’t want to suffer wrath, suspicion,
and retribution in return for our inquiry; and we don’t
want to be locked out on the other side of some white wall of silence.
While it is easy to understand why the pattern is as it is, we should
recognize that the status quo is not as it should be.
Consider the issue now from the point of view of yourself as
the surgeon who has produced a bad result. Aside from the rare sociopath,
no one who has devoted so much of his or her life to serving the
good of patients should be presumed to want to inflict harm; no
one should be presumed to want to produce a poor result when they
could, instead, produce a fine one. Like the resident in training,
if you were the physician who had not performed the surgery well,
you would want to know that something had gone wrong. You would
want the opportunity to learn from your mistakes, and you would
want to avoid inflicting similar harm on other patients.
If the poor result was an unfortunate mistake, you would appreciate
the opportunity to explain, the opportunity to avoid serious damage
to your reputation, and the collegial support from a concerned fellow
professional. Perhaps we physicians have to learn to be more courageous
in raising questions about our fellow physicians’ clinical
practice, and perhaps we have to learn to accept questions and criticism with
more understanding and appreciation of the physician who offers
them. What is clear, though, is that the current reluctance to have
a private conversation with a peer about a bad outcome serves neither
patients nor physicians well.
The issue of how to respond to the questioning patient is even more
difficult. Two basic principles must guide us here. First, of course,
is the good of the patient. Second is the fact that deception is
not a prudent strategy since it is likely to surface eventually and
to do more harm than good. When surgery goes badly, a patient may
suffer pain, disability, loss of freedom, loss of pleasure, and
financial hardship. However, the mere appearance of a poor result
does not mean that it is possible to say whether anyone is, in fact,
to blame. Thus, the first response should be an honest reply that
the outcome does not look good but that you will explore the situation further.
The physician providing the second opinion should also explore ways
of addressing any of the patient’s residual medical problems.
After discussing the case with the initial surgeon to learn what had
actually transpired, Dr. S should honestly communicate what she
has learned. She should explain that the unfortunate result reflected
the complexity of the original situation or the circumstances of
the surgery, or, if it is the case, that a blunder was made. As
uncomfortable as it may be to confirm the patient’s suspicions,
the truth is owed to the patient. Anything short of the truth erodes
the patient’s trust in our honesty as caregivers and in the
profession of medicine as a whole. A patient who is told that her
ankle difficulties are secondary to the standard, predictable complications
of a nonunion can believe the consulting physician only when such
reports are known to be trustworthy rather than lies from a doctor
attempting to protect a comrade.
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