Medicolegal Issues

Who is liable when a surgical error occurs?

OBG Manag. 2016 June;28(6):42−44,46−48

References

Galleano R, Franceschi A, Ciciliot M, Falchero F, Cuschieri A. Errors in laparoscopic surgery: what surgeons should know. Mineva Chir. 2011;66(2):107−117.
Fabri P, Zyas-Castro J. Human error, not communication and systems, underlies surgical complications. Surgery. 2008;144(4):557−565.
Nanji KC, Patel A, Shaikh S, Seger DL, Bates DW. Evaluation of perioperative medication errors and adverse drug events. Anesthesiology. 2016;124(1):25−34.
Makary MA, Daniel M. Medical error−the third leading cause of death in the US. BMJ. 2016;353:i2139. doi:10.1136/bmj.i2139. Balogun J, Bramall A, Berstein M. How surgical trainees handle catastrophic errors: a qualitative study. J Surg Educ. 2015;72(6):1179−1184.
Grober E, Bohnen J. Defining medical error. Can J Surg. 2005;48(1):39−44.
Anderson RE, ed. Medical Malpractice: A Physician's Sourcebook. Totowa, NJ: Humana Press, Inc; 2004.
Mehlman MJ. Professional power and the standard of care in medicine. 44 Arizona State Law J. 2012;44:1165−1777. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2205485. Revised February 13, 2013.
Hyman DA, Silver C. On the table: an examination of medical malpractice, litigation, and methods of reform: healthcare quality, patient safety, and the culture of medicine: "Denial Ain't Just a River in Egypt." New Eng Law Rev. 2012;46:417−931.
Landers R. Reducing surgical errors: implementing a three-hinge approach to success. AORN J. 2015;101(6):657−665.
Pettigrew R, Burns H, Carter D. Evaluating surgical risk: the importance of technical factors in determining outcome. Br J Surg. 1987;74(9):791−794.
Parker W. Understanding errors during laparoscopic surgery. Obstet Gynecol Clin North Am. 2010;37(3):437−449.
Sexton JB, Helmreich RL. Analyzing cockpit communications: the links between language, performance, error, and workload. Hum Perf Extrem Environ. 2000;5(1):63−68.
Kenyon T, Lenker M, Bax R, Swanstrom L. Cost and benefit of the trained laparoscopic team: a comparative study of a designated nursing team vs. a non-trained team. Surg Endosc. 1997;11(8):812−814.
Woodman R. Surgeons should train like pilots. BMJ. 1999;319:1321.
American College of Obstetrics and Gynecology. ACOG Committee Opinion No. 464: Patient safety in the surgical environment. Obstet Gynecol. 2010;116(3):786−790.

Aviation industry studies indicate that “high performing cockpit crews have been shown to devote one third of their communications to discuss threats and mistakes in their environment, while poor performing teams devoted much less, about 5%, of their time to such.”^1,13 A well-trained and well-motivated OR nursing team has been equated with reduction in operative time and rate of conversion to laparotomy.¹⁴ Outdated instruments may also contribute to surgical errors.¹

Moving the “learning curve” out of the OR and into the simulation lab remains valuable, which is also confirmed by the aviation industry.¹⁵ The significance of loss of haptic perception continues to be debated between laparoscopic (straight-stick) surgeons and those performing robotic approaches. Does haptic perception play a major role in surgical intervention? Most surgeons do not view loss of haptic perception, as with minimally invasive procedures, as a major impediment to successful surgery. From the legal perspective, loss of haptic perception has not been well addressed.

The American College of Obstetricians and Gynecologists has focused on patient safety in the surgical environment including concerns for wrong-patient surgery, wrong-side surgery, wrong-level surgery, and wrong-part surgery.¹⁶ The Joint Commission has identified factors that may enhance the risk of wrong-site surgery: multiple surgeons involved in the case, multiple procedures during a single surgical visit, unusual time pressures to start or complete the surgery, and unusual physical characteristics including morbid obesity or physical deformity.¹⁶

10 starting points for medical error preventionSo what are we to do? Consider:

Using a preprocedure verification checklist.
Marking the operative site.
Completing a time out process prior to starting the procedure, according to the Joint Commission protocol. [For more information on Joint Commission-recommended time out protocols and ways to prevent medical errors, click here.]
Involving the patient in the identification and procedure definition process. (This is an important part of informed consent.)
Providing appropriate proctoring and sign-off for new procedures and technology.
Avoiding sleep deprivation situations, especially with regard to emergency procedures.
Using only radiopaque-labeled materials placed into the operating cavity.
Considering medication effect on a fetus, if applicable.
Reducing distractions from pagers, telephone calls, etc.
Maintaining a “sterile cockpit” (or distraction free) environment for everyone in the OR.

Set the stage for best outcomesA true team approach is an excellent modus operandi before, during, and after surgery,setting the stage for best outcomes for patients.

“As human beings, surgeons will commit errors and for this reason they have to adopt and utilize stringent defense systems to minimize the incidence of these adverse events … Transparency is the first step on the way to a new safety culture with the acknowledgement of errors when they occur with adoption of systems destined to establish their cause and future prevention.”¹

Share your thoughts! Send your Letter to the Editor to rbarbieri@frontlinemedcom.com. Please include your name and the city and state in which you practice.

Who is liable when a surgical error occurs?

References

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