EXECUTIVE SUMMARY
A patient secretly recorded her surgical team making disparaging remarks about her, including some that can be considered racially offensive and suggestive of sexual abuse. The hospital’s risk manager responded to the patient in a way some critics say was dismissive and insufficient.
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The recording also documents the surgeon acknowledging the patient’s penicillin allergy but ordering the drug anyway.
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The patient is considering a lawsuit.
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No Action Was Taken By The Hospital Apparently, Other Than Reminding Surgical Staff To Behave.
A patient’s secret recording of her surgery revealed what one risk manager calls “inexcusable and reprehensible” behavior, including disparaging remarks about her body, comments that could be considered racially offensive, and suggestions that the woman be touched inappropriately by members of the OR team. The recording also documents what could be malpractice: a surgeon administering penicillin after he verbally acknowledged her allergy.
The response of the hospital’s risk manager also is being criticized as insufficient and likely to encourage a lawsuit.
Ethel Easter was concerned about her surgeon’s attitude after an office encounter in which she felt he had been rude and dismissive, so before surgery she hid a small recording device in her hair braids, according to a report in The Washington Post. (The story is available to readers online at http://wapo.st/1oEw4cM.) Soon after she was sedated, the surgeon recounted their dispute to the other doctors and said, “She’s a handful. She had some choice words for us in the clinic when we didn’t book her case in two weeks.”
The comments soon became personal and disparaging, with the surgeon and the anesthesiologist repeatedly referring to her navel and laughing. At one point, the anesthesiologist said Easter was “always the queen,” and the surgeon responded, “I feel sorry for her husband.”
The surgeon also called the patient “Precious” several times, which Easter interpreted as a disparaging reference to a 2009 movie character who is African American (like Easter), illiterate, obese, and sexually abused. At one point, the anesthesiologist asked, “Do you want me to touch her?” and the surgeon replied “I can touch her.” “That’s a Bill Cosby suggestion,” someone said. “Everybody’s got things on phones these days. Everybody’s got a camera.”
The surgeon twice asked “Do you have photos?” He “thought about it,” he said, “but I didn’t do it.”
Drug order and allergy
The recording makes clear that the surgeon knew Easter was allergic to penicillin but decided to administer Ancef, an antibiotic that causes side effects in some penicillin-allergic patients, and said a small amount should not produce any significant reaction. After surgery, Easter’s arms swelled, she developed a persistent itch, and had trouble breathing. She eventually had to go to the hospital emergency department for treatment of the allergic reaction.
Easter sent a complaint letter and a copy of the recording to the director of risk management and patient safety at the hospital, who replied that she had taken the step to remind surgical staff of the need for proper decorum, but said, “After carefully listening to the recording that you provided, Harris Health does not believe further action is warranted at this time.”
The risk manager also pointed out that the hospital is part of the Harris Health System, but the doctors in the recording are employees of the University of Texas Health Science Center at Houston. Easter interpreted that information as the risk manager saying the problem was not the hospital’s responsibility. Both organizations issued statements declining to comment.
The case is reminiscent of a 2015 lawsuit in which a jury ordered an anesthesiologist and her practice to pay a patient $500,000 for disparaging remarks made during surgery and a false diagnosis on his chart. The anesthesiologist was recorded saying she wanted to “punch you in the face and man you up a little bit,” among other comments. (Readers can read “Anesthesiologist ordered to pay $500,000 after patient’s smartphone records insults,” Healthcare Risk Management, August 2015, at http://bit.ly/1TvSZUw. For more discussion of improper OR behavior, readers can read “Crack down on OR antics as public, plaintiffs’ bar learn of poor behavior,” HRM, November 2015, at http://bit.ly/23e2dFY.)
An essay in the Annals of Internal Medicine in 2015 stirred controversy in the medical community and the general public when it revealed how anesthetized patients are sometimes treated with disrespect and even subject to what could be considered assault. (Access to the essay is available online at http://bit.ly/1Taj9qY. The cost is $32.)
Behavior was out of line
The behavior of the surgical team indicates a hospital culture that does not respect patients and could threaten patient safety, says R. Stephen Trosty, JD, MHA, ARM, CPHRM, president of Risk Management Consulting in Haslett, MI, and a past president of the American Society for Healthcare Risk Management (ASHRM). Trosty has dealt with serious OR misbehavior in the past when he was the risk manager at a hospital, and he calls this incident “inexcusable and reprehensible.”
The comments and the suggestion of sexual contact cannot be tolerated, Trosty says.
“It must be dealt with in the most stern and severe manner, and this means more than just talking to the physicians and operating room staff. Physicians or staff who commit these type of actions have to be disciplined, up to and including loss of privileges or firing,” Trosty says. “If this is allowed to continue, or it appears not to be taken seriously, then it will continue. This is the problem in many, if not most hospitals, and why it remains such a recurring problem.”
If the only consequence of such behavior is having an administrator remind you to behave, there is little incentive to discontinue this type of conduct, Trosty says. People who act in this manner either do not see why they are wrong or do not care, he says, and either situation must be changed.
It appears that malpractice was committed by giving the patient the antibiotic after discussing that she was allergic to it, Trosty says.
“This is clearly in violation of the standard of care and in the common sense practice of medicine,” Trosty says. “To say that it is only a small amount, and so should not have a negative effect, is nothing short of malpractice and a blatant disregard for the patient.”
Response called incorrect
The risk manager’s response was disappointing, Trosty says. To merely indicate in a letter that the staff members would be talked to is dismissive of the patient’s legitimate complaints and concerns, he says. It demonstrates a lack of concern for the patient or what happened to her.
At a minimum, Trosty says the risk manager should have arranged a meeting with the patient and listened to her concerns. She also should have considered having the physicians present to hear what the patient had to say and to respond to her complaints. But the risk manager would have needed to meet with the physicians ahead of time to be sure that they did not become argumentative or overly defensive. If she did not think that response was possible, then the physicians should not be present.
She also should address the issue of the antibiotics, because the recording seems to document a clear example of malpractice, Trosty says. The risk manager’s cavalier response only served to further anger the patient and could lead to an even greater determination to sue the physicians and the hospital, he says.
To suggest that the hospital was not responsible because the doctors were employed by another entity demonstrates a clear lack of understanding of the law related to this behavior and what it takes to constitute malpractice on the part of the hospital for actions of physicians operating in that facility, Trosty says. The doctors had to be credentialed and privileged by the hospital, have to abide by hospital policies and procedures, and have to be subject to discipline by the hospital. The hospital cannot evade responsibility merely by claiming they were employees of another entity.
“I think that this risk manager did everything wrong that could be done wrong,” Trosty says. “It is a clear statement that what happened to the patient does not seem to warrant the time or attention of the risk manager or the hospital.”
Risk not taken seriously?
The risk manager apparently did not take this situation seriously, another risk management expert says. Was there any investigation to determine if these types of disrespectful, mocking comments are typical in this facility or an outlier, asks Leilani Kicklighter, RN, ARM, MBA, CPHRM, LHRM, a patient safety and risk management consultant with The Kicklighter Group in Tamarac, FL, and a past president of ASHRM. If there was an investigation, the findings should have been discussed as part of a disclosure session with the patient, she says.
Kicklighter notes that research has shown that decorum in the operating room can affect patient safety. She wonders how many times this patient abuse happens, but is never known, because there was no recording and surgical staff do not report it. She asks why other members of the team aren’t stopping these inappropriate comments.
These situations should be referred for peer review, and some disciplinary action should result, she says. Consideration also should be given to requiring the physicians and staff to attend a medical ethics course, she says. The matter also should have been referred to the hospital’s ethics committee, she says.
“The root issue with these types of situations is that if OR staff do not report such remarks during the procedure so the supervisor can step in and intervene, or at least write an incident report that makes its way to risk management, we will never know how prevalent this unacceptable behavior is,” Kicklighter says. “It used to be that empathy and compassion were traits required when caring for patients, but now many of my friends and acquaintances remark that their animals receive better care, and better informed consent, from their veterinarians than they do from their personal physicians. Communication is a lost art or skill in the medical field, and I predict it will get worse with the overwhelming use of email, texts, and social media in general.”
SOURCES
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Leilani Kicklighter, RN, ARM, MBA, CPHRM, LHRM, Patient Safety and Risk Management Consultant, The Kicklighter Group, Tamarac, FL. Telephone: (954) 294-8821. Email: [email protected].
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R. Stephen Trosty, JD, MHA, CPHRM, President, Risk Management Consulting, Haslett, MI. Telephone: (517) 339-4972. E-mail: [email protected].
