I didn't ask about natural substance use. Am I liable?

Dr. GoldbergDr. Derm preforms surgical procedures all the time in his general dermatology practice.  He recently performed a fairly simple excision, discussed blood thinners, but failed to ask his patient about “natural” herbal intake. The patient did not take any prescription blood thinners, but did take high daily dosages of garlic and ginkgo. Unfortunately the patient had progressive post-operative bleeding which led to volume loss and an ultimate CVA. A lawsuit was brought against Dr. Derm. Can he really have liability for all the things people ingest these days?

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, aspirin, dipyridamole, and numerous newer prescription blood thinners. Prescription and non-prescription nonsteroidal anti-inflammatory drugs are also commonly used and inhibit platelet function.

Despite this many patients continue to take these medications and still undergo dermatologic surgical procedures without significant complications. The intake of herbal and vitamin supplements have also become increasingly common.  The four Gs of garlic, gingko, ginseng, ginger --and vitamin E -- are commonly used agents that have been implicated as increasing bleeding risk. A review however showed little effect in vivo of the effects of ginger, ginseng, gingko, saw palmetto and St. John’s wort in increasing bleeding risk when platelet number, fibrinogen, prothrombin time (PT), partial thromboplastin time (PTT), thrombin time, bleeding time and a platelet functional assay were done. However, the authors noted many case reports of catastrophic bleeding on many of these agents and further evaluation is probably necessary. The controversy remains. Should Dr. Derm have asked about the intake of such natural substances? 

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, now well-described, 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.

The duty of a physician performing cutaneous surgery is to perform that procedure in accordance with the standard of care. 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 dermatologist whose patient has bled, the specialist must have the knowledge and skill ordinarily possessed by a specialist in that field, and 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 ginkgo and garlic intake, mismanaged the case and that the negligence led to damage of the patient, then liability will ensue. Conversely, if the jury believes an expert who testifies for a defendant doctor that such herbal use is irrelevant, then the standard of care, in that particular case has been met. In this view, the standard of care is a pragmatic concept, decided case-by case, and based on the testimony of an expert physician. The dermatologist is expected to perform cutaneous surgery in a manner of a reasonable physician. He need not be the best in his field; he need only perform the procedure in a manner that is considered by an objective standard as reasonable.

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 methods even if one method turns out to be less effective-or more dangerous-than another method. 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.  

Thus, in most situations the standard of care is neither clearly definable nor consistently defined. It is a legal fiction to suggest that a generally accepted standard of care exists for any area of practice. At best there are parameters within which experts will testify. In the end it is the physician community that establishes that standard of care.

It may in fact be a jury that determines whether Dr. Derm is negligent.