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.

Patient was Concerned

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 at Lyndon B. Johnson Hospital in Houston, she hid a small recording device in her hair braids, according to a report in The Washington Post. (The Washington Post story can be accessed by 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.”

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 that the problem was not the hospital’s responsibility. Both organizations issued statements declining to comment.

The behavior of the surgical team indicates a facility 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.”

To suggest that the facility 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 facility for actions of physicians working there, Trosty says. The doctors had to be credentialed and privileged by the facility, have to abide by facility policies and procedures, and have to be subject to discipline by the facility. The facility can’t evade responsibility merely by claiming the physicians 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.”

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 facility’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.”