A patient over 50 years of age underwent an MRI scan for the evaluation of a symptomatic neck mass and was found to have a complex bilateral nodular goiter with moderate substernal extension. A history and physical examination by a consulting surgeon documented dysphagia and difficulty breathing, and total thyroidectomy was recommended. No fine needle aspiration was performed or offered. Informed consent was obtained. During surgery, the surgeon used a nerve monitor, although no monitor records were retained.
Per the operative note, which was dictated and transcribed on the day of surgery, the middle thyroid vein and the superior and inferior thyroid vessels were divided with a harmonic scalpel and the recurrent laryngeal nerve was protected bilaterally. No mention was made of the parathyroid glands. Two blanks were noted in the operative report in the segment of the dictation pertaining to the specifics of the thyroid gland dissection.
At the patient’s 2- and 3-week postop visits with a physician assistant, the patient complained of hoarseness and persistent dysphagia, cough, and globus sensation. The patient’s benign pathology was reviewed, but no discussion of a potential recurrent laryngeal nerve palsy took place. A month later, a CT was completed to evaluate the patient’s persistent symptoms. The CT suggested left vocal cord paralysis, as well as the persistence of a large portion of thyroid tissue below the clavicle.
A laryngoscopic evaluation confirmed left vocal cord paralysis. The patient was referred to a surgical oncologist for management of the persistent thyroid mass and dysphagia. Contemporaneously, the original surgeon dictated a second operative report due to dictation errors noted in the first report. In the second report, however, the surgeon did not mention that the recurrent laryngeal nerve was identified or protected. Rather, the report indicated that although the surgeon did not see the nerve due to the patient’s obesity, the nerve monitoring probe was used to test all areas prior to dissection.
Several experts were critical that the surgeon did not identify and protect the nerve during surgery, observing that it was below the standard of care to rely solely on nerve monitoring. Another expert was supportive, noting that the complication was known in a patient with a large goiter extending below the clavicle. The claim was settled.
“Three P” Analysis
The “Three Ps” refer to “prevent, preclude, and prevail"—the three key elements to reduce practitioner risk related to malpractice litigation.1
Prevent Adverse Events
- Know your limits and ask for help when needed. Most thyroid surgery in the US is performed by surgeons with limited experience with thyroidectomy. A direct relationship exists between surgeon experience and avoidance of complications and completeness of thyroidectomy.2
- While the use of nerve monitoring is not to be considered a requirement for the standard of care to be met, using nerve monitoring inappropriately can increase the likelihood of injury to the recurrent laryngeal nerve. Best practices for the use of nerve monitoring are outlined in the referenced article.2 A negative response from the nerve monitoring device should never be used as permission to divide a structure that is suspected to be the recurrent laryngeal nerve unless a positive response is elicited by direct stimulation of the vagus nerve.
- For additional best practices, see the practice guideline from the American Association of Endocrine Surgeons, AAES Guidelines for the Definitive Surgical Management of Thyroid Disease in Adults.
Preclude a Malpractice Case Despite an Adverse Event
- It is imperative that the indication for surgery, as well as the rationale for the extent of thyroidectomy recommended (lobectomy versus total thyroidectomy) be clearly explained to the patient and documented in the record. Include a discussion of the incremental risks and potential benefits of the proposed operation with specific reference to the pathology being addressed (for example, benign nodular goiter versus low-risk cancer versus high-risk cancer).
- While it is common for surgeons to collaborate with advanced practice clinicians (APCs), it is critical that any unexpected outcomes be addressed directly by the surgeon or in close collaboration with the APC. Be honest and direct with the patient, acknowledge the complication, and either actively monitor it or treat it. Never ignore the complication and hope that the patient does not bring it up.
- Conflicting information—either from different healthcare practitioners or from the same individual at different times—can be extremely confusing and distressing for the patient. Giving the patient conflicting information erodes trust and raises questions of intent, integrity, and competence. It can also increase the likelihood of a complaint or suit.
Prevail in Lawsuits When a Claim Is Made
- As is the case in all malpractice suits, the key to winning is simple: Do the right thing, for the right patient, for the right reason—and document it well. In this case, the conflicting narrative in two operative notes, dictated months apart (before and after the complication was recognized) gave the impression that it was self-serving documentation.
- The two operative notes—combined with poor surgical technique pertaining to the use of the nerve monitor, the large thyroid remnant left behind, the persistence of the symptoms that prompted surgery in the first place, and the lack of effective communication and ownership of the complication—made this case difficult to defend.
