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Background  The aim of this study was to review the typical factors related to physician’s liability in obstetrics and gynecology departments, as compared to those in internal medicine and surgery, regarding a breach of the duty to explain.    Methods  This study involved analyzing 366 medical litigation case reports from 1990 through 2008 where the duty to explain was disputed. We examined relationships between patients, physicians, variables related to physician’s explanations, and physician’s breach of the duty to explain by comparing mean values and percentages in obstetrics and gynecology, internal medicine, and surgical departments with the  t -test and χ 2  test.    Results  When we compared the reasons for decisions in cases where the patient won, we found that the percentage of cases in which the patient’s claim was recognized was the highest for both physician negligence, including errors of judgment and procedural mistakes, and breach of the duty to explain, in obstetrics and gynecology departments; breach of the duty to explain alone in internal medicine departments; and mistakes in medical procedures alone in surgical departments ( p  = 0.008). When comparing patients, the rate of death was significantly higher than that of other outcomes in precedents where a breach of the duty to explain was acknowledged ( p  = 0.046). The proportion of cases involving obstetrics and gynecology departments, in which care was claimed to be substandard at the time of treatment, and that were not argued as breach of a duty to explain, was significantly higher than those of other evaluated departments ( p  <0.001). However, internal medicine and surgical departments were very similar in this context. In obstetrics and gynecology departments, the proportion of cases in which it had been conceded that the duty to explain had been breached when seeking patient approval (or not) was significantly higher than in other departments ( p  = 0.002).    Conclusion  It is important for physicians working in obstetrics and gynecology departments to carefully explain the risk of death associated with any planned procedure, and to obtain genuinely informed patient consent.

A comparison of medical litigation filed against obstetrics and gynecology, internal medicine, and surgery departments