There’s a term used by hospital risk managers and leaders called a “never event.” The Joint Commission, an organization that accredits most hospitals, refers to never events as “sentinel events.”
Whatever they’re called, never or sentinel events are errors by a hospital, physician, nurse, or laboratory that are so serious that they shouldn’t ever happen. From my experience, though, these never events happen a lot more often than the healthcare industry would care to admit.
A great example of never or sentinel events is operating on the wrong person or body part. These mistakes are so common that several years ago The Joint Commission introduced a standard called the universal protocol.
The universal protocol is a surgical timeout before the operating room (OR) team begins a procedure. The entire OR team should be present, including the surgeon, anesthesia provider, nursing staff, and any technical staff involved in the procedure or care. The surgical timeout allows a time for the team to verify that they have the correct patient and verify that the correct procedure is about to be done on the correct body part.
As a former hospital administrator, I’ve always felt that the universal protocol is a great idea. As a Texas medical malpractice attorney, though, I realize that some OR teams blow through it, resulting in an unnecessary risk to patient safety.
Operating on the wrong knee
In the case styled Cook v. Spears, 275 S.W.3d 577 (Tex. App.—Dallas 2008, no pet.), the Dallas Court of Appeals entered an opinion in an interesting case involving the universal protocol.
The patient scheduled arthroscopic surgery with an orthopedic surgeon after experiencing problems with his right knee. I bet you can already guess what happened. Ill give you a hint: I can’t imagine that anyone followed the universal protocol on the morning of this unfortunate patient’s surgery.
The surgeon and a physician assistant (PA) operated on the wrong knee, performing arthroscopic surgery on the left knee instead.
The OR team didn’t realize this until the surgery was finished and the patient was transported to the post-anesthesia care unit (PACU), which is the room to recover from anesthesia. Before the patient even was fully awake, they wheeled him back to the operating room and performed a second arthroscopic surgery, this time on the correct knee.
Needless to say, when the patient woke up after his second surgery that day, he wasn’t a happy camper. He eventually filed a lawsuit against the surgeon, physician assistant, anesthesiologist, and other healthcare providers involved in the operating room care.
Surgeons and physician assistants
You’d think that the healthcare providers in a wrong-site surgery would want to settle the case before a lawsuit, where the never event would be a matter of public record. That’s not always what happens, though.
In the Cook case, the physician assistant (PA) who was in the operating room for the wrong-knee surgery had another idea in mind. In a hope to get the case dismissed, she decided to take advantage of a Texas tort reform that requires medical malpractice plaintiffs to produce a medical expert report early in litigation.
The PA filed objections to the adequacy of the plaintiff’s (patient’s) medical expert, a board-certified orthopedic surgeon. The gist of her objection is that an orthopedic surgeon is not qualified to testify as to the standard of care that applies to a physician assistant.
What an interesting and absurd argument!
The court noted that the orthopedic surgeon’s expert report stated that he averaged between 80–100 arthroscopic surgeries a year. The orthopedic surgeon also said that he was familiar with standards of care for a physician assistant acting as a surgical assistant on a knee surgery. The expert added that he had interacted and worked with physician assistants acting as surgical assistance for arthroscopic surgeries throughout his career.
He summed up his qualifications to testify about standard of care applicable to PAs by saying, “I am very familiar with standard of medical care for physicians [and] physician assistants acting as a surgical assistant . . . concerning the diagnosis, treatment, and arthroscopic knee surgery of patients, just like” the plaintiff.
That degree of qualification wasn’t enough, though, for the PA. She filed an objection to the orthopedic surgery expert’s qualifications, which the trial court denied. Then she took it up on appeal, resulting in a delay of the underlying trial court proceeding.
I’m not surprised that the Dallas Court of Appeals didn’t buy that.
Texas medical malpractice law is clear that a trial court’s review of the qualifications of an expert is based on the expert’s particular experience with issues directly related to the facts and treatment at issue in a case.
Not every physician, for example, will qualify as an expert in every medical malpractice case. It depends on the type of care involved in that expert’s direct experience.
In some situations, a standard of care is substantially developed in multiple fields, so a doctor in any of those fields that is familiar with the standard of care would qualify as an expert. In the Cook case, for example, the trial and appellate courts concluded that the plaintiff’s orthopedic surgery expert was qualified to testify as to the surgical time-out/universal protocol standard of care that applied to orthopedic surgeons, physician assistants, and anesthesiologists.
If you’ve been seriously injured because of poor operating room care, then contact a top-rated Houston, Texas medical malpractice lawyer for help in evaluating your potential case. This complex area of law is one where experience matters.
