Same-Day Surgery Manager

Three lessons for staying in the OR, not in court

By Stephen W. Earnhart, MS
CEO
Earnhart & Associates
Austin, TX

Oh my. This is such a litigious time we live in. People are hurling themselves in front of moving buses, throwing themselves down steps, and falling in food stores, all in an effort to cash in on unearned and undeserved booty from insurance companies in frivolous lawsuits. Fortunately many of these antics are caught on video cameras that businesses set up for just such shenanigans, but still far too many dishonest people collect their retirement early because it is often cheaper to pay them off than to fight them.

The health profession has long been the target of lawsuits — some perhaps deserved, some not. But as an industry, we spend billions of dollars in blatantly unnecessary tests, procedures, and protocol to cover ourselves.

Look at the TV ads on new drugs: "Suicidal thoughts." "Changes in vision or hearing." "Erections lasting longer than 4 hours?" All of this information is intended to keep us aware of remote side effects so we don't sue them should they occur. While I would never want to take a drug that could cause my "tongue to swell" and my "throat to close," sometimes you have no choice. The billions of dollars spent to keep these companies out of court does work, but not always I would guess, based upon the attorney ads for "bad drugs" on TV. You can do only so much to protect yourself, but protect yourself you must!

How can we, in our own little microcosm, avoid the steely stare of some prosecutor in court? Quite a bit actually.

Bear in mind, I am not an attorney. I don't want to get sued here by giving advice! Consider for example that something happened to me in your operating room that didn't necessarily cause me to lose an arm or other valuable appendage, but just maybe made me uncomfortable or inconvenienced me. If I liked you and knew it was just an accident, I could let it go. If I got a Bovie burn on my thigh or an infection and I thought you we sincerely sorry and empathic to my situation, and you made it right by not charging me for scar revision or meds, I could let it go. But if I didn't like you, or I thought you were rude or unsympathetic, or you charged me for other services needed to correct what was done wrong, look out! I'm a comin' for you.

Thus lesson number one is that if you see something is wrong or some untoward event happened, show a truly sympathetic and caring manner. Patients and visitors can spot sincerity, so let it flow naturally. Avoid an "attitude!" Rarely is there anything more gratifying then nailing someone that cops an attitude. Saying you are sorry is not admitting guilt. It can just mean that you are sorry.

Lesson number two is obvious: Follow procedure! While you may be caught in a widely cast net by some attorney in a malpractice suit, if you followed procedures established by your hospital or surgery center, chances are you will be OK. It is only when we act outside of those procedures that we get in trouble.

A good example would be allowing a staff member to drive a patient home after surgery, and they get into an accident. I don't know of any facility that would allow that to occur, but I know it does. You would be on your own for that infraction, along with your employer! Other examples could be looking the other way when you know a staff member is incapacitated in some way but still doing patient care. You are responsible for reporting that situation, and if you don't, you are just as guilty in a jury's eyes as the person who did the misdeed.

Lesson three. Never, ever, ever, ever try to cover up something! We all make mistakes, and we are responsible for them, but they are still just mistakes. Once you try to cover up something — be it on the chart, the med dose, or whatever — you have crossed the line from making a mistake to conducting an illegal act that could have disastrous results for you and your employer. A true professional will never ask you to "cover up" something that happens in the workplace. If they do, you need to refuse and report them to their boss. [Earnhart & Associates is a consulting firm specializing in all aspects of outpatient surgery development and management. Contact Earnhart at 13492 Research Blvd., Suite 120-258, Austin, TX 78750-2254. E-mail: searnhart@earnhart.com. Web: www.earnhart.com. Twitter: SurgeryInc.]