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Medical Malpractice
How to Lower Your Liability Premiums
Catherine Griswold
Publish Date: February 9, 2008   |  Tags:   Medical Malpractice-Legal

With skyrocketing malpractice premiums for physicians and healthcare facilities, it's more important than ever to develop and implement aggressive plans to reduce the number of surgical errors, which in turn reduces the liability of the physicians and the facilities where they operate. Showing an insurance carrier that you have detailed processes in place to reduce errors can lower your liability premiums and slow the rise in premiums in years to come. Plans for your facility should include:

  • semiannual review of surgical identification policies and procedures;
  • mandatory adjustments made to meet and exceed Joint Commission standards;
  • root cause analysis of errors and discrepancies (any surgical case where there was a discrepancy and how this occurred with a plan to prevent it in the future);
  • ongoing assessment of such surgical site identifiers as labels and markers, with analysis of their success in preventing wrong-site surgery;
  • training and annual competencies for all staff;
  • reporting of errors related to wrong-site surgeries followed by a root cause analysis and revised policies and procedures in the prevention of future occurrences; and
  • annual review of surgical team records.

Have a protocol in place The case of a New York orthopedic physician who performed wrong-site surgery on three patients over an eight-year period (1987-95) illustrates this point. The state department of health found the physician negligent and incompetent in all three cases. In addition to negligence, the health department found that he'd provided unwanted treatments on all three patients. The facts in these cases illustrate the importance of having protocols in place to prevent medical errors.

In the first case, a female patient presented to an emergency department, where the emergency room physician diagnosed a fracture of the right hip. The original X-rays were marked with a sticker and the films indicated a right hip fracture. However, the orthopedic physician believed that the films were inconclusive. After speaking with the patient's husband and sister, the physician said that the fracture was in her left hip, not her right. He proceeded with surgery on the patient's left hip, without follow-up X-rays to confirm which hip actually needed surgery.

Five years later, the same orthopedic physician didn't follow acceptable practice and didn't confirm the correct site of a scheduled arthroscopic procedure. The patient was scheduled to have left knee surgery, but the nurse prepped the wrong knee. Before surgery, the physician didn't review his office notes, the patient's chart or the MRI films, which were available in the operating room. The surgeon operated without verifying which was the correct knee. He even corrected damage in the right knee, even though it was the wrong knee.

In the third case, the physician treated a patient admitted to the emergency room after a fall. The X-rays confirmed a fractured right hip. However, when the physician examined the patient, the patient said that he couldn't lift his left leg. The physician didn't examine the patient's hips. Because the patient was confused, his son consented for surgery of the right hip. Yet the physician didn't review the consent. In addition, the physician said he believed that the X-rays were mislabeled and that the patient had a left hip fracture. Based on this belief, he began to operate on the left hip.

Outcome of the case The health department brought 11 counts of professional misconduct against the orthopedic surgeon. A hearing committee from the state's board of professional conduct unanimously found:

  • negligence on the part of the physician on more than one occasion;
  • gross negligence in all three wrong-site surgery cases;
  • incompetence on more than one occasion;
  • gross incompetence in all three cases;
  • unwarranted treatment in all three cases; and
  • professional misconduct as defined by New York law.

The hearing committee determined that the physician's license should be suspended for one year. However, this was stayed. The committee determined that he possessed the necessary medical skills to continue practice, as long as safeguards were put into place to monitor the pre-operative phase of his cases. He was given probation for five years.

The orthopedic surgeon in these cases repeatedly failed to verify and confirm discrepancies in X-rays and other clinical information including patient history supplied by the patient or a family member. The standard of practice of a reasonable and prudent orthopedic physician would have been to order additional X-rays to resolve any discrepancies before beginning surgery. In the case in which the nurse prepped the wrong knee, the hearing committee determined that confirmation of the correct surgical site is ultimately the responsibility of the surgeon.

In all three cases, the physician failed to perform appropriate examination of his patients, which would have resolved each discrepancy. He didn't review X-rays, MRIs or patient charts before surgery. A great concern in the case against this physician was the prior wrong-site surgeries. In all three cases against the surgeon, there were discrepancies between histories of patient and their families and X-rays. Having performed wrong site surgery in the first case, the hearing committee determined he should have put a plan in place to resolve any discrepancy in future surgeries.

Joint Commission standards The mistakes this physician made could have been prevented by the Joint Commission's Universal Protocol to prevent wrong-site, wrong-patient and wrong-procedure surgery. You should have a pre-operative verification process that includes:

  • marking the surgical site with permanent marker (some facilities write "yes" on the correct site and "no" on the incorrect site);
  • verifying the correct surgery and correct surgical site with the patient or a family member;
  • plans to resolve surgical site inconsistencies;
  • surgeon involvement in an informed consent process that describes the surgical procedure and the site of the surgery;
  • use of consistent, simple language for site verification;
  • comparison of the surgical chart with office records and tests such as X-rays or MRIs;
  • time out before the start of surgery, in which each member of the surgical team identifies the surgical site (extremely important in surgeries with more than one surgeon or multiple procedures); and
  • a process for reporting of wrong-site surgery, which should include root-cause analysis and a plan to prevent the error from occurring again.

The medical literature suggests that surgical facilities develop and implement improved standards to prevent future wrong-site surgeries. Some facilities use a bar coding system to identify patients and surgical procedures. In addition to marking the surgical site with a permanent marker, some facilities also use adhesive labels to verify the site of the surgery.

Larger issues revealed These cases illuminate several systematic problems in our country's healthcare structure. When physicians fail to follow standards of practice, errors can — and will — occur, as seen with the three patients who suffered wrong-site surgeries. In addition, the fact that physicians practice in more than one facility can contribute to multiple wrong-site surgeries performed by a single surgeon. With no standard of tracking physicians' and nurses' practice issues, it's easy for them to hide or fail to disclose errors, leaving healthcare facilities vulnerable to malpractice lawsuits.

It doesn't need to be this way. Creating and enforcing policies and procedures to prevent medical errors at your facility is the best way to ensure patient safety and your best defense against malpractice lawsuits.

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