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6 questions a health lawyer asks before surgery

An insider's guide to minimizing the risk of medical malpractice

Attorneys who handle medical malpractice cases have a unique perspective on the healthcare system. By seeing the many ways that things can go wrong, we are eager to do what we can to minimize risk when it comes to ourselves and our family members.

Here’s an insider’s view on 6 things a medical malpractice lawyer does before surgery.

#1: Check out the surgeon

Training and experience matters.

Interestingly, Texas medical malpractice law provides that a physician or surgeon must have knowledge, training, and experience in the issue to qualify as an expert witness in a case.

That standard makes sense and should apply doubly when selecting a surgeon to provide care.

A surgeon may have tons of experience and competence for a given procedure, but little experience with others. When you find out that you require surgical treatment for a condition, it pays to do some research and find a surgeon with significant training and experience in that area.

Here are some things to consider:

• When and where did the surgeon graduate from medical school?

• Did the surgeon complete a residency or fellowship, and in what areas?

• Is the surgeon board-certified?

• Is the surgeon recognized as a master surgeon or center of excellence?

• When and where did the surgeon get trained on the particular procedure under consideration?

• How long has the surgeon performed the procedure, and over what period of time?

• What complications has the surgeon personally encountered with the procedure?

• What does the surgeon’s typical patient for this procedure experience post-operatively?

#2: Check out the facility

It wasn’t that long ago that surgeons and patients only had one option for operating rooms, a hospital. That’s changed. One of the big motivating factors is that Medicare, Medicaid, and health insurance companies pay hefty facility fees to hospitals or other facilities that have operating rooms.

Some surgeons decided to open their own surgical facilities so they can get a cut of that lucrative payout. Whether surgeon-owned or not, some ambulatory surgery centers (not at hospitals) perform at high levels while others don’t.

One thing to bear in mind at all surgery centers, though, is that when a life-threatening complication occurs, such as cardiac or respiratory arrest, the patient has to be transferred to a hospital for care. Although the facility fee at a surgery center will be less than the cost of having the surgery in a hospital operating room, the dollar savings don’t offset the risk and safety considerations.

Here are some things to consider:

• Who owns the surgery center?

• Is the surgery center a center of excellence?

What kind of emergency equipment is on site?

What happens if there’s a life-threatening emergency?

#3: Check out the procedure

The standard of care requires surgeons to obtain informed consent before proceeding with surgery. This involves a frank discussion of the risks and benefits of the proposed surgical procedure, compared with other options, as well as doing nothing.

Make sure all your questions are answered before giving informed consent. Never sign informed consent paperwork before speaking with the surgeon directly. Specifically ask why the surgeon recommends a particular procedure and if there is a less risky alternative.

#4: Understand instructions for before and after surgery

During the informed consent conversation, it’s a good idea to be familiar with the surgeon’s instructions for how you should prepare for surgery, and what to expect after surgery. Remember, good healthcare is a team effort, and an informed patient is an indispensable part of the team.

#5: Check out the anesthesia provider

It also wasn’t that long ago the physician anesthesiologists were the only choice–or at least the default choice–for anesthesia care. Now, though, certified registered nurse anesthetists (CRNAs) play an increasingly common role in providing operating room anesthesia care.

This is the subject of a big debate that physician anesthesiologists have often described as scope creep because of the thought that nurses have successfully expanded their scope of practice into areas traditionally reserved for physician care. Physician anesthesiologists contend that they have superior training. Nurse anesthetists, on the other hand, argued that because they’re the ones in the trenches, they have equivalent or superior experience in handling anesthesia care.

In some states, nurse anesthetists can practice without supervision or direction of a physician anesthesiologists. In Texas, the law only allows CRNAs to provide anesthesia care in conjunction with the physician. The physician anesthesiologist must be involved in the pre-anesthesia evaluation, anesthetic plan, and the most dangerous parts of the procedure (including starting and ending anesthesia). They also have to be immediately available in case there’s an emergency.

Patients have the right to know who’s going to provide their anesthesia care. Whether it’s an anesthesiologist physician or a nurse anesthetist, here are some points to consider related to anesthesia care:

• Do I need to be seen by a cardiologist before the procedure?

• Who will be providing anesthesia care at the bedside during the entire procedure? Will it be a physician anesthesiologist or a nurse anesthetist?

• When and where did the anesthesia professional graduate from professional school?

• Did the anesthesia professional complete any advanced training?

• Is the anesthesia professional board-certified?

• What is the anesthesia plan?

• How many times has the anesthesia provider provided this type of anesthesia, and over what period of time?

#6: Give attention to estate planning

It’s unpleasant to think about but a serious complication, such as a disability or even death, is a risk for many surgeries. That’s why it’s a good idea to make sure your estate planning is in order when getting ready for surgery.

At a minimum, adults should have a will, durable power of attorney (for financial and business matters), and medical power of attorney (for health care decisions) in place. It’s a good idea to make sure your family members know where these key documents are being stored.

We are here to help

If you’ve been seriously injured because of problems with surgical care in Texas, then contact a top-rated, experienced Texas medical malpractice lawyer for a free consultation about your potential case.

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him by calling 281-580-8800 or emailing him right now.


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