‘Never events’ resulted in $1.3 billion in settlements
One-third of cases resulted in permanent injury
Nearly 10,000 cases of “never events” occurring during surgery and totaling $1.3 billion in settlements were reported to the National Practitioner Data Bank between 1990 and 2010.1 The average payout for a surgical never event was $133,055. In one-third of the 9,744 cases studied, there was a permanent injury to the patient.
Use of checklists resulted in a three-quarters lower likelihood of missing critical lifesaving steps, according to a recent study that looked at 17 operating room teams participating in 106 simulated surgical-crisis scenarios.2
“There have strong disagreements around whether under crisis conditions, people are actually better off going with their judgment,” says Atul Gawande, MD, one of the study’s authors and a professor in the Department of Health Policy and Management at Harvard School of Public Health in Boston.
The study showed that in fact, physicians are better off following protocols that can help them remember key things they might otherwise forget in a very stressful high-risk situation, he says. Every team performed better when the crisis checklists were available than when they were not, according to the study.
“Medicine has taken a different route than the airline world, where you handle a crisis with a protocol, under the argument that the complexity of human conditions is too overwhelming for a protocol,” says Gawande. “This study indicates that is not true.” (See related story, below, on disclosure of surgical mistakes.)
References
- Mehtsun WT, Ibrahim AM, Diener-West M, et al. Surgical never events in the United States. Surgery 2013, In Press.
- Arriaga AF, Bader AM, Wong JM, et al. Simulation-based trial of surgical-crisis checklists. N Engl J Med 2013; 368:246-253.
Sources
For more information on liability risks of surgical errors, contact:
- Atul Gawande, MD, Professor in the Department of Health Policy and Management, Harvard School of Public Health, Boston. Email: [email protected].
- Anupam B. Jena, MD, PhD, Assistant Professor, Department of Health Care Policy, Harvard Medical School, Boston. Phone: (617) 432-8322. Fax: (617) 432-1073. Email: [email protected].
- Erin L. Muellenberg, JD, Arent Fox, Los Angeles. Phone: (213) 443-7595. Fax: (213) 629-7401. Email: [email protected].
Surgical mistake made: Consider disclosure Claims ‘more defensible’ After reviewing an X-ray of a patient with a renal tumor who was referred from another facility showing a tumor on the left side, the physician proceeded to remove the patient’s left kidney, which pathology later revealed to be normal. “On further review, the original X-ray was mismarked. The physician was devastated, and the patient was left on dialysis,” says Erin L. Muellenberg, JD, an attorney at Arent Fox in Los Angeles. “This was an example of the type of nightmare that every provider wishes to avoid.” Instead of hiding the error, the doctor apologized and openly explained the situation to the patient and family, and he stated that he should have repeated the films instead of relying on the single X-ray. “Further investigation showed that in fact, the doctor had offered to retake the X-rays, but the offer was declined [by the patient] as it would have been an unnecessary exposure to more radiation with very little expected difference that would have impacted his surgery,” says Muellenberg. There was no claim because everyone recognized that the surgeon had reasonably relied on the other X-ray, but the facility and the surgeon paid to compensate the patient and cover his future medical care including future transplant costs. “Where there is a clear error, compensation is appropriate,” says Muellenberg. “Had the staff or surgeon tried to hide or cover this up, it would have exposed all of the providers to punitive damages.” Most important to disclose Because surgical errors might be more likely to lead to adverse outcomes of greater severity, it could be more challenging for physicians to feel comfortable disclosing these errors, even though they are the most important to disclose, says Anupam B. Jena, MD, PhD, an assistant professor of health care policy and medicine at Harvard Medical School and a physician in the Department of Medicine at Massachusetts General Hospital. “For most physicians, I think the desire to admit to an error does not simply stem from a desire to avoid malpractice litigation, but more importantly, from professional obligation to the patient-physician relationship,” he says. “The byproduct of reduced liability is but one consequence of that decision.” Jena points to data showing that that early disclosure programs can reduce liability and the time required to resolve clinical disputes.1 Jena also points to data demonstrating that state apology laws which specify that a physicians’ admission of guilt to a patient is inadmissible in court might lead to reduced payment sizes and time required to resolve malpractice cases, particularly among patients with more severe injury.2 “I think that most would agree that further rigorous evaluation of not only these policies but others, such as ‘safe harbors,’ are important to guiding reforms in malpractice,” says Jena. Muellenberg recommends educating staff on how to react when there is an error, and avoiding disclosure of opinions. “Transparency has to apply to the facts and not to opinions regarding causation,” she says. “Apology is similar, in that it has to avoid any mention of the cause.” For example, a family member overhearing staff comment that the surgeon “had another screw-up” is completely inappropriate, she says. “The use of both transparency and apology can go a long way in mitigating the risk of a legal action,” says Muellenberg. “Transparency always makes a claim more defensible.” References
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