by Jock Hoffman, Patient Safety Education Program Director, CRICO/RMF  

Unnecessary hysterectomy; unnecessary lumpectomy; unnecessary prostatectomy.

On rare occasions, a pathologist examining tissue excised during surgery will discover that no disease is present, that the organ was healthy. Before anyone begins to investigate how that happened, someone has to inform the patient that the surgery was unnecessary. Learning what to do after an adverse event before you have to encounter that situation is time well spent.

A study of malpractice cases recorded in the CRICO Comparative Benchmarking System (CBS) shows that such unnecessary surgeries are uncommon, but costly. Pathology is cited as the responsible service in less than two percent of all cases filed from 2005–2009, and only a small subset of those alleged an unnecessary surgery due to a pre-operative pathology error. But when that scenario did lead to an allegation of malpractice, nearly half (47%) of those cases were closed with a payment to the patient (average=$506,000). For all CBS cases closed from the same time period, 36% closed with payment (average=$447,000).

Myriad systems and fail safe backups abound to prevent the mishandling of specimens, but even the best systems or protocols fall short of perfect. When faced with the gut wrenching news that the patient who just underwent a major operation was disease-free, it is time for neither handwringing nor finger pointing.

A conversation with a patient involving the disclosure of what proved to be a misguided procedure is daunting. Given the intense emotions present, this discussion can have a significant impact on the patient's decision to seek compensation for his or her loss and the tenor of any subsequent negotiations. Immediate intervention by the clinical team and institutional risk manager is essential.

Pathologists and surgeons need to consider who will speak with the patient, balancing the responsibility for the error and their own distress with the strength of the patient relationship and the ability to provide ongoing support. Patients and family members are likely to want both answers and actions. Working with your risk manager (and, if available, a disclosure and apology coach) to coordinate that process can, perhaps, soften the blow and help regain some trust.

Because these circumstances are so rare, pathologists—indeed practitioners in all specialties—who routinely review their organization's protocol for responding to an adverse event may be better able to help minimize the repercussions if they ever find themselves party to an unnecessary and irreversible procedure.

Additional Material

Talking with Patients and Families about Medical Error:
A Guide for Education and Practice

Disclosing Harmful Pathology Errors to Patients

Error in Surgical Pathology


Legal considerations involved in medical malpractice claim adjudications arise in special factual contexts that require case-specific analysis, interpretations, and the application of often times unclear or changing principles. Because of variations in fact patterns and local jurisdictions, specific consultation should be obtained before formal action is taken based on any information contained in this publication. Information in this publication is not intended to be, and should not be used as a substitute for, legal advice or contextually based adjudication. For specific guidelines on any actual or potential malpractice claim, or for an opinion on a specific liability exposure, consult an attorney.