The trusted source for
healthcare information and
Law and Order. The Practice. Ally McBeal. Family Law. 100 Centre Street. The People’s Court. Judge Judy. Watch television and you’ll see people going to court to solve their problems, make their lives better, and punish those who caused them to suffer. Of course, these television shows don’t show the real lives most of us lead. Still, they reflect the litigious society in which we live and work.
What does this trend mean for a same-day surgery manager? It means knowing your risks and taking steps to protect your program from malpractice suits, say experts interviewed by Same-Day Surgery.
Although medical error may be the primary reason for the lawsuit, not all patients decide to sue based on the medical error alone, says Bill Duffy, RN, MJ, CNOR, assistant vice president of perioperative services for Evanston (IL) Northwest Health Care.
Research shows that patients cite four general reasons, in addition to medical error, that they have sued their physicians or other health care providers,1 he says. All four reasons are related to communication, a particularly vulnerable area for same-day surgery programs because moving patients quickly through the facility is emphasized, he points out. Those reasons are:
• Deserting the patient, which is the reason for the suit 32% of the time, happens when the patient’s telephone calls are not returned, or the patient is not given any way to contact the health care provider.
• Devaluing patient/family views, which is the reason for the suit 29% of the time, occurs when the physician or health care provider does not pay attention to the patient’s concerns or dismisses them as inconsequential.
• Delivering information poorly, which is the reason for the suit 26% of the time, is often a matter of not explaining pre-op or post-op instructions so that the patient knows what to expect.
• Failing to understand patient/family relationships, which is the reason for the suit 13% of the time, occurs when the physician or same-day surgery personnel either don’t include a family member in conversations that the patient may not understand or include a family member against the patient’s wishes.
The patient’s and family’s expectations as to what will happen before, during, and after surgery may differ from what normally happens, says Duffy. When the physician or surgery program staff do not clearly communicate what will happen or do not listen to what the patient expects, and the service does not meet the patient’s expectations, patients and their families believe they’ve been mistreated, he explains. (See "Good communication is first line of defense," in this issue.)
In addition to communication, there are other areas in which same-day surgery programs are more at risk than traditional hospital departments, says Joel Cronin, JD, MD, managing partner at Romano, Eriksen, and Cronin, a West Palm Beach, FL, law firm.
Surgeon credentialing is one area in which same-day surgery programs are especially at risk, says Cronin. (For more information on credentialing see Same-Day Surgery, June 1999, p. 65.) While hospitals have well-defined accreditation committees and monitoring requirements and specific lists of approved procedures for each surgeon, same-day surgery programs, especially freestanding centers, may not have the resources for this type of credentialing process, he explains.
If you don’t check a surgeon’s proficiency and qualifications, your program may be liable for the surgeon’s performance, he adds. "Same-day surgery programs should be able to rely upon a local hospital’s credentialing of physicians, but the same-day surgery manager must ask the right questions," Cronin says. Don’t ask the surgeon what privileges he or she has at the hospital, he emphasizes. "Ask the hospital Has Dr. Jones been approved for the following procedures?’" he says. Make sure the facility monitors surgeons for a certain number of procedures to check for competency and that it checks educational requirements, Cronin adds.
You also can seek data from the National Practitioner Data Bank (www.npdb.com) and state professional standard agencies, and check with the circuit court clerk for your county to determine if any lawsuits have been filed against the physician, experts suggest.
In addition to checking qualifications of your surgeons, be sure to honestly evaluate your own surgery program’s capabilities, suggests Cronin. Look carefully at your staff members, equipment, facility, emergency plans, and financial resources to be sure you can handle each procedure safely, he says. More complicated procedures mean increased liability risk for same-day surgery programs, he explains.
Another potential area of liability can be lab specimens that are sent to outside labs, says Cronin. "You must demonstrate a vigilance in tracking the specimen, obtaining accurate test results, and reporting results to the patient’s doctor in a timely manner," he says. A simple skin lesion might be malignant, and losing the specimen or the test results can result in the patient’s condition going undiagnosed, he points out.
Epidural monitoring practices also may present a problem in a same-day surgery program, says Cronin. "Everyone is careful to monitor a patient with an epidural the first one-half hour, but then he or she tends to relax," he says. Careful monitoring is still necessary because there can be a defect with the infusion pump, the patient can develop sudden hypotension, or the line can shift and the anesthetic is no longer delivered to the proper location, he points out. Monitoring mistakes generally happen when the patient is prepped and there is a delay, he says.
"The patient stays in the holding area and feels no pain, so he or she may not realize there is a problem. Everyone is alert during the surgery," Cronin emphasizes. "The most common places for a drop in vigilance are in the pre-op and post-op areas."
Written protocols and procedures, practice guidelines based on the community standard of care, and good documentation also are essential if you are sued, says Duffy. (See "Protocols, documentation needed to prevent lawsuits," in this issue.) Juries believe the written word more than the spoken word in a trial, so if you can point to a written protocol or a clear operative note that describes what happened during the procedure or the care postoperatively, you are much better off, he says. Of course, if you have a written protocol, make sure your staff follow it, he says.
Take the time to evaluate all areas of potential risk and put processes, procedures, and practices into place to reduce your risk of a lawsuit, says Cronin. This time and effort is well spent because, he points out, "The best malpractice case is one that doesn’t occur."
1. Beckman H. The doctor patient relationship and malpractice lessons from plaintiff depositions. Arch Intern Med 1994; 154:1,365-1,370.
For more information about avoiding malpractice within your same-day surgery program, contact:
• Joel Cronin, JD, MD, Managing Partner, Romano, Eriksen, and Cronin, P.O. Box 21349, West Palm Beach, FL 33416. Telephone: (561) 533-6700. Fax: (561) 533-8715.
• Bill Duffy, RN, MJ, CNOR, Assistant Vice President of Perioperative Services, Evanston Northwest Healthcare, 2650 Ridge Ave., Evanston, IL 60201. Telephone: (847) 570-1880. E-mail: firstname.lastname@example.org.
Audiocassettes are available from the 2001 Same-Day Surgery Conference on many outpatient surgery topics, including Simple Steps to Avoid a Lawsuit (tape 080) by Bill Duffy, RN, MJ, CNOR, Assistant Vice President of Perioperative Services for Evanston (IL) Northwest Health Care; and To Err is Human — A Panel Discussion (tape 090) by Duffy; Stephen Earnhart, MS, President and CEO, Earnhart and Associates, Dallas; Ann Kobs, MS, RN, president and CEO, Type 1 Solutions, Cape Coral, FL; and Leonard S. Schultz, MD, Hickok & Schultz, PA, St. Luis Park, MN. To order, contact: