When Complications Occur: Legal and Ethical Navigation for Surgeons

In this episode, Dr. David Schweibish discusses practical strategies for communicating after adverse events, maintaining transparency, and implementing protocols that may support effective risk management. 

Key Takeaways

1.    Avoidance and silence can worsen risk after a complication. Delayed communication, poor documentation, or defensive reactions following an adverse outcome can erode patient trust and increase the likelihood of litigation. Prompt, empathetic, and fact-based communication is essential. 
2.    Transparency should focus on facts, not speculation or blame. Clinicians should objectively document what occurred, outline the plan for management, and keep patients informed while avoiding self-incriminating language such as “I should have” or “this was my fault” before all facts are known. 
3.    Written protocols help teams respond consistently and effectively. Practices can reduce risk by establishing complication-response checklists, communication workflows, staff training exercises, follow-up systems, and quality improvement reviews that guide the management of adverse outcomes

Please note: This content is a direct transcript, capturing the authentic conversation without edits. Some language may reflect the flow of live discussion rather than polished text. 

Transcript

Jennifer Spector, DPM: Complications are an inevitable part of clinical practice, but how you respond can define both patient trust and medical legal risk. In this episode of the Podiatry Today podcast, we speak again with Dr. David Schweibish, a trustee of the APMA and immediate past president of the Florida Podiatric Medical Association about the critical moments that follow an adverse outcome. I'm Dr. Jennifer Spector, your host and the Associate Editorial Director for Podiatry Today. Let's get right into this topic because unfortunately we all find ourselves in this position because even under the best of circumstances, adverse outcomes can happen. So first of all, welcome back, Dr. Schweibish. We're so glad to have you here with us today.

David Schweibish, DPM: Thanks so much, Jennifer. Glad to be back.

Jennifer Spector, DPM: So from your experience, what do you think the biggest mistake is that clinicians make immediately after a complication occurs, say, postoperatively?

David Schweibish, DPM: Well, I can speak from personal experience about adverse outcomes that I myself have had and I've fallen into this trap and I think a lot of folks who are listening or viewing are going to be able to relate to this and it's that of silence or avoidance. I mean, you get that bad news or you discover the suboptimal outcome about anything, whether it's something as simple as an injection or complex reconstructive surgery and you sit there kind of in panic, you become silent or you try to avoid the reality of what's occurring. And so surgeons very often will delay communicating with the patient. They'll fail to document what's going on in a very prompt way or sometimes they even jump into kind of a defensive mode about what's occurred. And when any of those things happen, essentially what develops is kind of a vacuum. A patient will start to fill their minds with suspicion or doubt about the care that's been rendered or even the physician themselves, which can lead to eroded trust or higher litigation risk.

And those are really unfortunate circumstances where unfortunately one single response or even a look on a doctor's face can sometimes ignite this massive cascade of either mistrust or doubt or anything else to the contrary to ideal relationships with our patients. So at the end of the day, when those types of things happen, there are many steps that need to be taken, but a lot of them are fundamental and kind of really common sense in a way. But the things that I see most often, the errors that occur separate from the avoidance or the panic is just not having in place a really clear protocol whether or not it's written, but as to how exactly you're going to deal with these complications when they occur and inevitably they're going to occur. I mean, even if you are the most simply a practicing doctor, even if you're performing the most fundamental basic types of clinical care and you don't do anything procedural or surgical, inevitably you're going to find yourself in the basket of having to deal with some complications.

And the things that we see very commonly with regard to not having a protocol in place is, what is it that I have to do next? What are the next steps? And the next step cannot be continue to panic or be in denial or avoidance about what's occurring. So I think that's where a protocol makes a big difference. Being able to say, okay, in a high risk case like a diabetic wound or postoperative infections, you have to have an understanding of how am I going to communicate this with the patient? What steps am I going to take to remedy the problem and what's going to happen to be able to move this beyond the complication scenario into a more favorable outcome? Those are things that are not easy always to put into place. And obviously there's a lot of a variety in the way that that needs to be accomplished.

Every case is different, but it starts with, first of all, not overapologizing. I think a lot of times what we see in different claims that are coming through the system is a doctor is constantly telling a patient, "This is my fault. This was my error. This was a huge gross mistake on my part" before all the facts are necessarily clear. We know that a lot of times various complications are not always due to physician error. They can in fact be due to things simply like malunion or non-union infection, things that were more pertinent to the hospital or ASC where the cases were performed, perhaps an employee related protocol fell through the cracks. Any of these factors can play a part in why a complication occurs. So for a physician to take complete ownership and blame of it right off the bat sometimes is a little bit premature.

So getting all of the facts straight and having a clear understanding of what's occurring in that complication scenario is really critical and then acting promptly to make sure that the right Ts are crossed and the right I's are dotted.

Jennifer Spector, DPM: No, for sure. And how do you feel in general that docs should approach disclosure conversations, say with a patient or their families about what went on?

David Schweibish, DPM: Well, I mean, and I do this myself to the best of my extent. I mean, disclosure to patients and families of course should be timely. It should be empathetic. There should be a tone in your voice of not just objectivity and then making it black and white, but it should be empathetic to the fact that you're compassionate and you understand that this is not the outcome that we would have liked. However, this can happen. And again, if you did a good job going through the consent process prior to surgery, there should be an understanding in that patient's mind that that type of outcome could have occurred. But most importantly, it needs to be factual. It needs to be based on the actual facts ideally within hours or the initial day or two right afterwards once the outcome, the poor outcome has been discovered, but those are things that have to be done in exactly that manner.

And the guidance is relatively clear. If you provide an objective description of what happened, you express regret for the unfortunate outcome and you outline the next steps for care, all of that together is the appropriate response. That embodies what patients have largely come to expect if in fact there's a complication that occurs after any kind of care is rendered, not just surgical, if it's even a clinical case where something has not occurred the way it was supposed to. So the very practical approach, the steps that I typically advise folks to follow, initially you have to prepare. So whoever it is, your teammates, your medical assistants, your nursing staff, if it is something where a patient is responding very aggressively and they're contacting an attorney to claim that malpractice has occurred, that's where you have to reach your carrier and start to consult with them about the appropriate steps to move forward.

And any good malpractice carrier will usually do a very good job of giving you those steps clearly in a very strategic manner if in fact you have fear or doubt that something may become a legal argument. I usually tell people, structuring the conversation when those types of things, how you say it matters a lot. "I'm sorry that this kind of event has happened. Here's what we know right now, here's the X, Y, and Z of it and here's what I'm going to be doing to address it. " When patients have that clarity, they get that reassurance from you, it puts them at ease. They have an understanding that, yes, there's been a complication, but I'm in good hands and I feel like the doctor that I've entrusted my care to is taking the appropriate steps to move me beyond the complication phase into something that's going to provide a more optimal outcome.

And then you have to commit to ongoing communication. You've got to be in touch with that patient regularly and/or their family members and provide that continuity of care. And in my case, the one thing I always reinforce that very few doctors do sufficiently enough is to tell the patient, "We need to tie in other providers. We need to get the infectious disease consult. We need to talk to the vascular doctor, your primary care doctor, and build them into the equation to make sure that all of the steps are taken to optimize your outcome and don't take it all upon yourself to provide the solution

Jennifer Spector, DPM: Those are difficult conversations. So where is the line in your opinion between that transparency and for lack of a better term, self-incrimination when it comes to documentation or communication?

David Schweibish, DPM: Yeah. And that does get to be tricky. I mean, transparency, we've seen this again going through the legal systems and doctors ask me all the time at conferences, well, I feel like if I put too much in the note, it can come back to bite me in the butt if it ever ends up in a court, but transparency protects you as long as at the end of the day what documentation you have and what transparency you're providing is in fact factual. Where things get to go off the spectrum is in the world of speculation or blame and it's incredible how much documentation we see out there where providers are stating things that are really not objective. They're saying things like, " I should have done X, Y, Z, or my error at this appointment date created XYZ. "Unless there's a very clear undisputed error like wrong site surgery or something along those lines, it shouldn't really be included in your documentation.

There shouldn't be the should or woulda's and couldas. It should be very clear objective findings. Wound dehiscence occurred on this date after surgery, sutures were removed, cultures are pending, patient is planning return to operating room on this date and that's it. You include the fact that you educated the patient about the problem, you discuss any refusals or non-compliance issues, you explain your rationale, but we do not want to get into this self-incriminating language, the should have, wouldas, and couldas. And at the same time, we just have to be honest about what the facts are and making sure that the appropriate parties involved, the patient or the family know that we may not have the full picture yet we're investigating it, we're treating it aggressively and we're going to work on getting you towards a better outcome. So again, comes down to could clear objective documentation more than anything else.

Jennifer Spector, DPM: And when you've spoken with us before, you've talked about the importance of systems and protocols being in place to really support risk mitigation. So what systems or protocols do you think practices could implement to respond consistently to adverse outcomes or complications?

David Schweibish, DPM: Well, and this is where I have to thank my wife and business partner for this because she's a master of protocols. I tell her she almost has like a militaristic mindset for this sort of thing because at the end of the day, we cannot rely upon our memory in a crisis and staff can't rely upon what was discussed a year ago at a meeting. If you don't have it written down, it's likely not going to occur in a systematic fashion. So first you have to have like a complication response checklist, some kind of an immediate notification protocol that occurs. The patient is contacted or perhaps if it's serious enough, things like the insurer are contacted. There needs to be a documentation template in place, maybe a single pager that gets filled out by a physician or practice manager or medical assistant that documents details specific to the complication and it provides some kind of a scripting to navigate the way that we're going to communicate this.

There should also be team training. I mean, I can't reinforce this enough. A lot of doctors unfortunately don't have a lot of training in place for their staff, but you really should have drills or reviews of high risk scenarios. What happens when that patient comes in one week after bunion surgery and there's a significant dehiscence with infection or a diabetic patient with complication that you walk in and there's that significant odor of a gram negative bacteria and you're like, "This does not look very good or smell good." What are the next steps? What things should be done before the doctor even has to start calling orders or putting orders in place to ensure that that protocol is being followed? And the follow-up systems, what calls are being made? Is somebody reaching out to the patient in between appointments for a simple status update? "Hey, how are you feeling?

Is your pain calming down? Is the redness calming down? Does the wound look as bad or does it seem like it's worse?" All of that can be put into place if you have a proper written protocol. Then of course there should be things like quality improvement loops and all that if you want to really get into the weeds, what is the root cause of the problem? Something happened, something failed, something in the way that we typically like to do things did not occur. So what are we going to do? Just like we do with M&M conferences or mortality and morbidity conferences, we have to admit the faults or admit where something went wrong and say, "What are we going to do to remedy the problem so that we don't do it again in the future?" Those are absolutely critical to preventing these issues from occurring in the future.

Jennifer Spector, DPM: Is there anything else that you really hope that clinicians take away from this discussion today?

David Schweibish, DPM: I mean, I would add, and I know a lot of folks who listen, they might be small private practice owners or part of a small group where resources and time might seem kind of limited, but the reality is that the systems and the protocols that large institutions put into place can very much be adopted by small private practices and the payoff is really immense. I mean, the risk of fewer claims, better outcomes, better Google reviews, peace of mind. And at the end of the day, if you just connect with your malpractice carrier, go to conferences, pay attention and be a proactive learner as a physician, you can put into place a lot of systems that can truly minimize your exposure to risk in a very intelligent way without too much headache, without too much expense and too much burden on your practice. Complications are part of what we do.

They are going to happen, but how we respond really defines our professionalism and our legal outcomes. And I think ultimately, as long as we put patients first and we're smart about what we do, we'll all be better off forward in the end.

Jennifer Spector, DPM: Absolutely true. Thank you so much for sharing all of this with us today. It's been great to have you back on the program.

David Schweibish, DPM: Thank you so much, Jennifer. I appreciate it.

Jennifer Spector, DPM: And this episode today is presented in partnership with the APMA and don't forget to subscribe so you never miss an episode that covers key topics in podiatric medicine and surgery. For more resources and expert perspectives, visit podiatrytoday.com.

Presented in partnership with the American Podiatric Medical Association.