According to an article in Outpatient Surgery, the surgeon was not in the room when the injury occurred and only discovered it when he was about to begin the procedure.
An insufflator valve had been sterilized and was apparently still hot when an unknown hospital staff member put it down on the patient's exposed skin. [An insufflator is a machine that is used to pump CO2 through tubing into the abdomen for laparoscopic surgery.] When the doctor saw the mild second-degree burn, he asked what happened, but "but no one in the OR claimed any knowledge or responsibility."
The hospital had settled the suit on behalf of its staff, but the surgeon, who as a private practitioner had his own malpractice insurance, held out. The original lower court ruling dismissing the suit against him had been based on the plaintiff's lawyer's failure to prove that the surgeon was responsible for the actions of the hospital staff.
In December 2012, I wrote a post stating my opinion that activities such as counting the sponges during an operation were not the responsibility of the surgeon. Many who commented on the post were highly indignant that I could suggest such a thing.
I wrote another post last year on the subject in response to another surgeon's blog entitled "Everything's my fault: How a surgeon says I'm sorry." I felt that many things that happened to patients were beyond the control of the surgeon. Most of the comments agreed with me.
I keep hearing that medical care has become a team sport. If that's true, then the surgeon, like everyone else, is simply a member of the team. People on teams have different roles and must execute properly for the team to succeed.
One of the most interesting things about the case in question was that none of the OR team members had any idea how that hot insufflator valve found its way to the patient's abdomen.
One thing we know for sure, at least in Kentucky, is that a surgeon is not legally responsible for everything that happens to a patient in the operating room, particularly when he is not even present.
Is this decision the first nail in the coffin of the "captain of the ship" doctrine?
19 comments:
This is a very important topic.
Fundamentally, the surgeon is held responsible because he carries the most malpractice insurance.
A few years ago,I was the physician in charge of an elderly demented patient whose son, after neglecting his mother for three years ,brought her to the hospital because she weighed only 82 pounds.She refused to eat. Of course, he demanded she be tube fed. (He was also a California lawyer ). Fearing trouble , I ordered tube feedings while realizing I was treating the son, not the mother, who should have been left to die in peace. I ordered tube feedings but on the second day, the feedings weren't started and the nurse said that was because the tube had not been "properly placed " into the small bowel yet. She said her nurses would do it and were trained specially to do it. The next day the feedings weren't started and the nurse said they would get it in the small bowel soon. The next day the feedings still were not started so I said to just start the feedings
with the tube in the stomach. I tried to reason with the head nurse:" "the food you and I eat doesn't go directly into the small bowel,etc"
I even did a search in Up to Date which confirmed my belief that placement into the small bowel was not necessary. Despite that, the head nurse on the floor told me that the small bowel placement was their "POLICY".(Despite the fact that the nurses could not achieve this placement ) She considered me to be meddling with their "standards ".
Eventually the patient died. I felt that was inevitable anyway but I thought about bringing this situation up for discussion with the powers that be in the hospital but I realized that this would be futile. Policy is , after all, policy.
The doctor is no longer the "captain of the ship". . Orders are no longer orders. The are suggestions.
William, spot on, my friend. Speaking of tube feedings, I had a similar problem. The nurses were stopping them on patients who had gastric residuals of 50 mL. Of course, that was absurd because the patients were getting 50 mL/h. But 50 mL was the policy, and by god no amount of evidence could sway them.
I don't want to be captain of the ship. I prefer to be a smaller target.
I remember the mantra from my training about the general surgeon being captain of the ship, most notably in trauma. Our snickering colleagues in orthopedics, neurosurgery, etc. were only too happy to oblige us, knowing that we were basically acting as their interns, i.e., our phones were ringing at night and after discharge, while they rested and played. I think we in general surgery finally woke up about a decade ago and said the hell with that.
Artiger, you are right, but the trauma patients are much better off than they were.
To Artiger,
Yes the general surgeons woke up and got the hospitalists to take care of the trauma patients and the post op patients. Then while scrubbing for cases they ridiculed the hospitalists for every thing they did. We now call this "teamwork".
I don't know where you worked, but I haven't seen general surgeons leave the care of trauma patients to hospitalists, especially in trauma centers. I'm sure some general surgeons, like other surgical specialists, have dumped postop care on hospitalists. That may change when fees are unbundled.
I believe this is the future and for me at least, the present.Time will tell.The economic argument is that under this structure when surgeons don't have to do post op care they can do more OR cases.
William, I've heard that before. It's nonsense. Surgeons should take care of their patients pre- and postop. I guarantee you that if a complication that is mishandled results in a bad outcome, a surgeon who did not participate in the patient's postop care will not win a lawsuit.
Hi Dr. Skeptical-
Operating room mishaps like this are disturbing because they are a clear deviation from old school OR nursing principles. No instrument should ever gain entrance to the operative site unless it passes through the hands of a scrub nurse. I am not a thermodynamics expert, but can tell you from experience big heavy instruments like weighted speculums stay hot enough to burn for a long time. The scrub nurse in the example above was very careless. I was socialized to believe that the surgeon was always captain of the ship. Captain surgeon should have made the negligent scrub nurse walk the plank after a verbal dressing down in front of her mates.
I am happy the surgeon got off. That's a sign of some common sense. The others, probably should have been hanged - and again, starting with the scrub nurse. They should have known who did it.
Not only that, but it is another item patients can hang on the medical communities' silence and inability to police themselves.
I agree that someone should have admitted their mistake. It might have saved everyone a lot of trouble.
Some incredibly interesting debate here, and there's benefits to both sides! Sometimes having a "captain" type of situation is best in surgeries, while at the same time I do hate that the surgeon would've been seen as guilty even though they weren't in the room following the "captain" system.
Jordan, I agree. That's my point. I think it is absurd to blame the surgeon if he was not even in the room when it happened.
Slightly off topic, but sometimes it's a matter of being caught up in a wide lawsuit net. I remember being part of a multi-defendant case, where one of the ER physicians got named, and he hadn't even seen the patient. He was unfortunate enough to have taken the call from the hospital who wanted to refer the patient, and his shift ended before the patient was sent. He (and just about all of us) were dismissed, but only after 6-7 years of nonsense.
They often sue anyone whose name appears anywhere on the chart. That way they can take the doctor's deposition without having to pay the doctor for her time. Before suing in my state, the plaintiff's lawyer must present a good faith opinion from an expert witness who is in the same specialty as the doctor who is the target of the suit.
I cringe so hard at the whole "Team" indoctrination of medicine.
The issue with the doctors being members of the "team" is that it suggests they're not the leaders. In some ways this is true: none of the hospital staff are paid by the doctor, so in actuality they don't answer to the doctor - they answer to the hospital CEO and board. This was very obvious in my last job: none of the technical staff of the hospital were keen to do anything I requested/ordered of them, even though it was in their job descriptions, and since I didn't pay them, they really didn't have to. In that regard, the surgeon was correct in standing up to the lawyers and refusing to take ownership of a hospital peon's serious mistake.
Notice how in all of these discussions about team that the leader of the team is never mentioned. That's because the leader is implied to be the C-suite executive of the hospital who is never present.
"Team" medicine has nothing to do with improving patient care. It has everything to do with reducing the power and stature of physicians and propping up unqualified ancillary staff to the same level so that the business-class can profit. This is an old trick played by the most corrupt of groups: they did it in Iran and China after the revolutions, taking down the intellectuals and replacing them with janitors and gravediggers who would do anything for the "party" just to keep the power they knew they didn't deserve.
If all the "workers" are the same level, and they are led by the C-suite, then the C-suite are the true leaders of medicine. Should the day come when all doctors are hospital employees, malpractice fears should cease, since just as when McDonald's coffee scalds you you sue the company not the worker that handed it to you, any future malpractice claims should be made not against the doctor but the organization that they work for.
Stu, excellent comment. You describe the team concept much better than I.
To paraphrase one of my father's partners:
When everything goes to plan, you're just another healthcare provider
When something goes wrong, you're THE PHYSICIAN
Yes, as I sort of said in the post, "surgery is a team sport." But when something goes wrong, then it's suddenly not a team anymore.
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