Visitor’s involvement fundamental to lawsuit

A malpractice case against Beth Israel Medi cal Center in New York City and the doctors involved will be greatly complicated by a New York state health department report that says a salesman participated in the surgery, say risk managers who have reviewed the allegations.

Even though the report from the state health department does not conclude that the salesman’s actions led to the patient’s death, the allegation that he performed part of the procedure will be a fundamental element in the lawsuit, says Sam Bishop, ARM, vice president of compliance and insurance services for Wellstar Health System in Marietta, GA. "It doesn’t matter that he didn’t cause the fluid overload," he says. "There’s no way you can support having a nonlicensed person performing a licensed function. [If he did what the report said], he was practicing medicine, and there’s no way you can defend that."

Tort litigation requires the plaintiff prove damages, so the patient may have had a hard time bringing a malpractice case against the hospital if all had gone well in the procedure. In fact, if the salesman did participate, and the outcome was good, it may never have been discovered. If a salesman’s participation in a successful surgery were discovered, however, Bishop says the patient still could report the improper conduct to state health authorities.

Because the patient died from the procedure, the malpractice suit is inextricably linked with the salesman’s actions. The plaintiff’s attorney could argue that his alleged participation somehow contributed to the death, or his alleged participation could be introduced as evidence of sloppy practices at the hospital. Either way, the jury would be presented with a very disturbing image of a salesman operating on a woman.

"It will be very much an issue if a lay jury hears this case," Bishop says. "A lay jury probably will escalate this to a punitive level because they just will not accept this scenario or any explanation for it. A jury won’t care that the salesman’s actions weren’t directly responsible for the death."

Observers expect the hospital and the physicians to settle for a large sum to keep the case away from a jury.

Another legal consideration is noted by Margaret Douglass, MPH, RN, director of risk management at FPIC, a physicians’ insurance company in Jacksonville, FL. She says a salesman performing any part of a procedure could be charged with battery. And if so, it is possible that the hospital, physicians, and staff could be roped into criminal charges for allowing him or her to commit battery with a patient under their care.

In this case, the dead woman’s husband, a police officer, has asked that criminal charges be filed against the two surgeons and the salesman. The New York state education department, which licenses doctors, reports there is evidence Myers practiced medicine without a license. The department recommended that local authorities prosecute Myers on criminal charges.

To help avoid such a fiasco in your own facilities, Douglass and Bishop advise you to establish two policies on OR visitors, if you have not already done so, and formally remind staff about the policies, even if you have reminded them before. The first policy should require that physicians obtain informed consent from the patient for any unlicensed visitor to the OR, including salespeople. The second policy should state that the visitor must never touch the patient or operate medical equipment in any way.

That second policy may seem painfully obvious, but Bishop and Douglass say it is necessary to remind staff and visitors.