Medical Malpractice: Cleared for Surgery?

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You should have a clear protocol for obtaining medical clearances.


patients in difficult situations MEDICAL CLEARANCE Patients are often put into the difficult situation of collecting records or getting surgical clearances under serious time constraints.

As a medical malpractice attorney and former physician, I've seen several recent lawsuits with the same unsettling theme: patients getting wheeled back to the OR without having been properly cleared for surgery. Many of these cases involve patients with blood clotting or coagulation conditions.

These known or suspected medical diagnoses require hematology clearance that is sometimes overlooked or missed entirely. Typically, a lack of proper communication between the patient, the hematologist, and the surgical facility is the root of the problem. In a recent case, this lack of communication led to a patient suffering serious complications that could have been easily avoided with a properly followed protocol for hematology clearance.

A note in the margin
In one of my current cases, a woman went to a hematologist in 2008 to confirm a condition she had been diagnosed with as a child, von Willebrand disease, a hereditary coagulation abnormality that can cause extended or excessive bleeding, especially with major surgery. The hematologist ran some tests that were improperly interpreted and hand-wrote a short note in the margin of a flow sheet (not a regular consultation or progress note) stating that she didn't believe that the patient had the disease. However, in a later note she recommended follow-up testing, though the patient never returned.

Fast-forward 2 years. The patient was suffering neck and arm pain and underwent an MRI, which showed a Chiari malformation. Because of the known history of von Willebrand disease, the neurosurgeon — preparing for the major decompression surgery — as well as the hospital and anesthesia provider, asked the patient to retrieve her records from her hematologist.

After several unsuccessful attempts at getting the records from the hematologist, the patient finally obtained some copies of these hematology records from another physician and sent them to the hospital. The hospital and doctors did not directly contact the hematologist for any information and decided that these second-hand records, containing the note written on the margin of a flow sheet, were satisfactory. Consequently, the patient did not have a pre-op evaluation or consultation regarding her known history of von Willebrand disease.

The patient underwent the decompression surgery. However, immediately after surgery in PACU, she complained of a severe headache and neurological changes. She was repeatedly given a narcotic to help the pain, but continued to show a decline in her neurological status. Eventually a CT head scan was ordered demonstrating an intraventricular hemorrhage resulting in an obstructed fourth ventricle and hydrocephalus (water on the brain). She underwent another emergency surgery, but now permanently suffers from weakness in her left arm and leg, numbness, and other neurological problems.

An expert evaluation of the case found that the patient was only given a routine pre-op evaluation — despite the concern about her known history of a high-risk coagulation disease — and no pre-op hematology consultation or proper clearance was obtained. Instead, it was discovered that the clearing anesthesiologist, who received only a portion of the patient's hematology charts, reviewed only the informal and outdated handwritten note in the margin of the flow sheet. Based solely on this note, which did not clear the patient for the specific neurosurgery planned, the doctor went forward with surgery without any precautions.

In deposition, the hematologist said that the note in the margin was not her final opinion and that the patient needed further testing. Most critically, the hematologist said that if the hospital and doctors had contacted her to clear the patient for the planned surgery, she never would have given them the OK to proceed.

The importance of a written clearance
Unfortunately, this scenario is an all-too-common occurrence. Miscommunication often happens because patients are made responsible for collecting their own records or clearances from hematologists or other physicians. Patients are put into the difficult situation of collecting records or getting surgical clearances under serious time constraints; they want to ensure that their surgery occurs as scheduled.

These medical clearance concerns, whether they be hematologic, cardiac or otherwise, require your critical attention. Patients who have a blood disorder or cardiac condition, or have an immediate family member with such a condition, must have a proper clearance before surgery. In hospitals, this is often less of an issue because medical specialists are located in the same building, making it easy to coordinate consultations and testing. However, for an ASC this can be more difficult to manage.

You should have a clear protocol for obtaining all required medical clearances. In the case above, the hospital's procedure for obtaining the clearance was not rigorous and there was no process in place to assure that required proper consultation had actually been obtained.

After scheduling a patient's surgery, it's essential to communicate your expectations for clearance, and give the patient enough time to collect records and visit any specialists. Try to avoid placing unnecessary pressure on the patient to obtain the records, and whenever possible, have releases signed in order to obtain the records yourself. When a patient does obtain the documents from the specialist, you want a recently written letter clearing the patient for that specific surgery. Notes in side margins, over-the-phone agreements or years-old records will not cut it.

If a patient is having trouble obtaining the records, or if you're receiving incomplete or outdated forms, you should personally reach out to the specialist. You also want to personally check with the specialist if there is any concern that the patient may be improperly cleared for surgery. If you don't have written specific clearance, reschedule the surgery.

While the patient may be the one collecting the records, you play an active role in ensuring that all the i's are dotted and the t's are crossed before any procedure. Miscommunication, and the malpractice that can come with it, is preventable with a strong policy and a little organization.

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