Phone calls during surgery can be risky

Suppose you were reviewing a new malpractice claim and a nurse told you that the surgeon happened to be on the phone when the patient made a mistake that injured the patient. Surely the surgeon was talking to another physician or reviewing lab results for the patient, right?

Maybe not. If you probe a little deeper, you may find that the surgeon was on the phone discussing something that had nothing to do with the surgery at hand, perhaps even something as frivolous as scheduling a round of golf or a dinner date. Risk managers would shudder at the thought of a jury hearing that detail during a malpractice trial, but this scenario may be happening more than you think.

Attorneys say it is difficult to find any documented cases of patients citing cell phone use during surgery as a contributing cause to malpractice, but they also say it is only a matter of time before that occurs. There have been similar cases in other countries, and on Internet sites devoted to reviewing doctors, patients in the United States frequently complain about phone use during surgery.

Foreign cases show phone use cited

Two international cases show how phone use during surgery can be cited as a contributing cause to alleged malpractice. In a case from Israel, a woman underwent hand surgery in Tel Aviv's Sheba Medical Center and then filed a lawsuit claiming malpractice by her surgeon.1

The woman remained awake during the procedure and, according to the lawsuit, the surgeon's cell phone rang. He instructed a nurse to answer but eventually took the phone and spoke. According to the complaint, immediately after ending the conversation, the surgeon stated that he had mistakenly cut a nerve. The patient claimed that the doctor then told a nurse, "You see, one shouldn't speak on a phone during surgery." The disposition of the malpractice claim is unknown.

In 2000, the Hong Kong Medical Council banned surgeons from using cell phones while operating.2 The move followed a week of controversy after the council ruled that Tung Hiu-Ming, MD, who answered his mobile phone during surgery, had not acted unprofessionally. The council ruled in favor of Tung despite records showing that he was on the phone for 14 minutes. He claimed he only was on the phone long enough to speak one sentence and that the other party, by accident, had not hung up.

The patient, however, said he had heard his doctor discussing the purchase of a new car while he was under a local anesthetic to have a polyp removed from his intestines. The patient required a second surgery within hours to repair a punctured colon wall.

References

1. Cell phone leads to malpractice suit. Israel Faxx. Accessed at www.allbusiness.com/middle-east/israel/ 207129-1.html.

2. Docs banned from using phones surgery. Reuters. Accessed at www.totalobscurity.com/mind/news/ 2001/cellphonesurgery.html.

Would you want plaintiff's attorney to know?

Benjamin W. Glass III, JD, a plaintiff's medical malpractice attorney in Virginia and the author of Why Most Malpractice Victims Never Recover a Dime, an Insider's Report on Medical Malpractice Claims, says that if he were representing a medical malpractice plaintiff, he would seize on the revelation that a surgeon was on the phone when a mistake happened. "Most jurors are at least vaguely familiar with the research demonstrating that drivers who talk on the cell phone while driving are as impaired as someone with a 0.08% blood alcohol level," he says. "This research received a fair amount of media attention. Even if they aren't aware of this study at the beginning of a trial, they would be by the end."

Glass also notes that it could be simple to verify that the doctor was on the phone during surgery, and who he or she was talking to. "In most car accident cases today, the cell phone records of the drivers are subpoenaed and examined," he says. "Once the first story of doctors talking on a cell phone during surgery gets out, discovery of the doctors' cell phone records will become standard in surgical malpractice cases."

But people use cell phones so much these days, even while driving, that it may seem jurors would be sympathetic and not see the phone use during surgery so critically. To the contrary, Glass says, he would use that against the doctor by asking the jurors to think about how they are distracted by talking on the phone while driving. If they are honest with themselves, they will admit that the phone distracts the user from other activities. "I cannot imagine a juror not taking this fact as a huge negative against a doctor when a surgery goes awry," he says.

Use discretion about calls

There is nothing inherently wrong with surgeons talking on the phone during surgery, but there should be a good reason for dividing attention between the patient and the phone call, says Lewis S. Sharps, MD, FACS, a surgeon and president of Positive Physicians Insurance Exchange, a physician-driven medical malpractice company in Paoli, PA. Sharps says risk managers should encourage surgeons to stay focused, but he also points out that the culture of the operating room has always included distractions.

It is a misconception to think that during surgery the doctors are 100% focused on the patient and what they are doing with their hands, he says. That is an unrealistic, and unnecessary, expectation, Sharps says. There are always distractions in the form of conversations in the room, consultations with other physicians, music playing, and people coming and going from the room, he notes. It is up to the doctor to determine what level of distraction is acceptable and still allows for focusing on the patient, he says. "Physicians routinely get calls in the OR, and it's up to the surgeon to say whether he can take it or not. It's a judgment call," Sharps says. "We certainly would not condone continual use of the phone in the operating room because it can be too much of a distraction. It would not be acceptable to take just any call. It should be related to patient care or otherwise a high priority."

Sharps does caution risk managers about overreacting to the issue and trying to cut back too harshly on phone use in the OR. He is in favor of restricting phone use to important calls and focusing on the patient, but he points out that surgeons tend to be masters of dividing their attention without sacrificing performance. "Especially after you've done something a thousand times, a surgeon can have his or her hands totally focused on what they're doing while the mouth is on another topic entirely," he says.

Surgeons understand, jury won't

The American College of Surgeons in Chicago has no policy regarding phone use during surgery according to a spokeswoman. Sharps suggests that risk managers look at phone use during surgery not as a taboo but as just one more distraction in the OR that must be managed and kept to an acceptable level.

"Minimize it, but don't expect people to stop using phones entirely. You wouldn't expect people to stop talking to each other in the OR during surgery, even if they're talking about personal issues, so people are going to see the phone as just one more step from that," he says. "A good surgeon will stay focused and know when a case demands an absolute minimum of distractions, and he or she will make that happen."

Sharps notes, however, that the common usage of phones during surgery may not matter much if the issue comes before a jury. "If the nurses decided to testify that he was on the phone during the surgery, you've got a very big ding in your defense. Your defense is destroyed if that comes up," he says. "A room full of surgeons might understand that using the phone didn't necessarily have anything to do with the alleged malpractice, but a lay jury is going to think, 'Oh my God, he was talking to his wife instead of paying attention to what he was doing.'"

Sources

For more information on the liability risks of phone use during surgery, contact:

  • Benjamin W. Glass III, JD, Benjamin W. Glass III & Assoc., 3915 Old Lee Highway, Suite 22-B, Fairfax, VA 22030. Phone: (703) 591-9829. Web: www.benglasslaw.com.
  • Lewis S. Sharps, MD, FACS, President, Positive Physicians Insurance Exchange, 1500 E. Lancaster Ave., Suite 104, Paoli, PA 19301. Phone: (888) 335-5335. Web: www.positivephysicians.com.