EXPERT ASSESSMENTS IN MEDICAL LIABILITY. STUDY OF THE BASIS OF EXPERT TRUTH: FACTORS OF BLAME IN SPINAL COLUMN SURGERY IN A DISPUTE OVER COMPENSATION FOR PHYSICAL INJURY

Abstract

Surgery remains the speciality most exposed to demands
for compensation for physical injury. There must be a certain fault for the surgeon to be held responsible for the
injury with a direct and attributable causal link. The
surgeon has to provide a best endeavour and safety in the
care he dispenses.
The result of a surgical act is often the fruit of shared collaboration, although only the individual responsibility of
the person who is at the origin of the contract with the
patient is engaged.
In surgery, there is a random coefficient fuelled by the risk
and uncertainty of the occurrence of an undesirable
event. The surgeon sets out an indication of treatment in
which the risks specific to the individual, his pathology
and all the interactions are unforeseeable. This unpredictability may lead to an accident covered by the healthcare
professional’s insurance.
Risk cannot be dissociated from the surgical act, the ultimate aim of the surgery being to obtain an expected satisfactory result with a positive benefit/risk ratio. The surgeon’s best endeavour is vital and is his responsibility,
even though in rare cases, jurisprudence can impose a
performance obligation when the technical act is reputed
to be simple to the point that the argument of a random
therapeutic risk cannot be justified.
The main reasons to blame the surgeon within the framework of his civil liability are an unjustified operation,
lack of or insufficient information given to the patient, a
surgical technique not in accordance with recent acquired scientific data, a surgical act more damaging than
foreseen, an error as to the operating site, forgetting a
foreign body, insufficient post-operative follow-up.
The main convictions pronounced against practitioners
are mostly due to a delayed diagnosis and/or delayed reintervention, a technical error added to a lack of surgical
indication, a fault in the consent and /or information
with a lack of understanding by the patient of the
content delivered.
The expert is ‘a glass that enlarges objects and serves the
judge, who has the ability to use it to examine completely
freely if the images that are presented to him are already
clear’, he relies on the facts to recognise the existence or
not of an injury and establish a direct causal link attributable to the surgical act. He compares the data acquired by science and the data of the surgical field where
technical assessment, human assessment and multi-disciplinary cooperation are intermingled. He has to determine whether the act involved clumsiness, carelessness,
lapse of concentration, negligence or non-respect of the
protocols.
With a view to determining the liability of the surgeon,
the expert must analyse the indication for the operation
and the spontaneous evolution without surgery, the proof
of the failure of the alternative medical treatments, the
objectives of the operation and its limits, the surgical
technique used, the benefit/risk ratio expected before the
intervention, the alternative treatments existing at the
time when the surgical indication was proposed to the
patient, the professional impact since the surgical injury
has been recognised.
At a time when surgical acts are treated judicially, the
healthcare professional has to apply the principle of legal
medical prudence and the factors which underlie it.
Communication and the healthcare professional’s humanism are the surgeon’s best friends against any wrongful
accusation by a patient.