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An Attorney’s Perspective:
Prevention of Wrong Site Surgery
Troy R. Rackham, Attorney At Law
Troy R. Rackham
Disclosure Information
Speaker:
Troy R. Rackham, JD
Discloses no conflict
Planning Committee:
Ellice Mellinger MS, BSN, RN, CNOR
Discloses no conflict
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Has no financial interest: None
Objectives
1. Discuss communications skills to avoid
wrong side – wrong site injuries
2. Describe ways in which wrong side – wrong
site injuries present themselves legally
3. Identify ways that wrong side – wrong site
surgeries can present licensing and other
complications
Stories
Case Study # 1
A 65-year-old woman was admitted to the day-surgery unit at this hospital
for release of a trigger finger of the left ring finger.
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Approximately 3 months earlier, the patient was seen in the orthopedic clinic at
this hospital because of pain and stiffness in the ring finger of the left hand.
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She reported that the finger intermittently “got stuck” in flexion.
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Past surgical history included a cholecystectomy.
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History of coronary-artery and carotid-artery atherosclerosis, hypertension,
diabetes mellitus, hyperlipidemia, and hypothyroidism.
Medications included nitroglycerin and nitrate preparations, metformin,
levothyroxine, simvastatin, acetylsalicylic acid, and vitamins.
She had no known allergies.
She spoke only Spanish.
Case Study # 1
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On examination, there was tenderness in the palm at the base of the left ring
finger over the A1 pulley of the flexor tendon sheath and a slight flexion
contracture of the proximal interphalangeal joint of the left ring finger. There
was snapping of the left ring finger with flexion and extension.
Motor and sensory function and tendon balance were normal, and there was
no angular or rotational deformity. A diagnosis of idiopathic trigger finger
(stenosing tenosynovitis) was made. Conservative treatments failed.
The risks, benefits, limitations, and alternatives of operative and nonoperative
treatment were discussed. The patient decided to proceed with surgery.
Ten days later, the patient was admitted to the day-surgery unit, and carpaltunnel-release surgery was performed without complications.
Immediately after completing the procedure, the surgeon realized that he had
performed the incorrect operation.
Case Study # 1
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What happened?
Surgeon performed a carpal-tunnel release on the patient, rather than a trigger-finger
release
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Multifactoral:
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Stress on the day-surgery unit was high because several other surgeons were behind
schedule.
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Multiple patients with similar procedures
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Skin antisepsis caused the marking to be wiped off the limb
Decision made to move this patient to a different room
Difficult experience with a previous patient earlier that day
There was no tourniquet, so the circulating nurse had to leave the room to get one, which
distracted her from the patient and made her fall behind on her documentation.
No formal time-out took place before the procedure was begun
There was a change in the nursing team in the middle of the procedure
Data Regarding Wrong-Site and
Wrong-Side Errors and Root
Causes for those Errors
Is there a problem with WSS?
“Never Events”
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Wrong-site surgery is included in the list of
adverse events, also known as never events (i.e.,
hospital-acquired conditions), originally described
by the National Quality Forum and later adopted by
Medicare.
Wrong-site surgery is a never event that is nonreimbursable
Sentinel Events
A sentinel event is an unexpected occurrence involving death or
serious physical or psychological injury, or the risk thereof.
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Serious injury specifically includes loss of limb or function.
The phrase, "or the risk thereof" includes any process variation
for which a recurrence would carry a significant chance of a
serious adverse outcome.
Such events are called "sentinel" because they signal the need
for immediate investigation and response.
The Joint Commission reviews organizations' activities in response
to sentinel events in its accreditation process.
Sentinel Events
Sentinel Events
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Where are these events happening?
Sentinel Events
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Injuries from these events
Wrong Site Summits
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In 2003, The Joint Commission, AAOS,
American College of Surgeons, and other
organizations held a summon on wrong-site
surgeries.
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Another summit was held in 2007.
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Recommend the Universal Protocol
Universal Protocol
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Conduct a pre-procedure verification process
Mark the procedure site before the procedure
is performed
Perform a time out
To Err is Human
Why do these errors occur?
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Communication gaps
Breakdowns in skill-based behavior
Breakdowns in rule-based behavior
Breakdowns in knowledge-based behavior
Sometimes a mixture
Reasons for Errors
Why do these errors occur?
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Human factors
Communication gaps
Failures in leadership
Failures in skill-based behavior
Breakdowns in knowledge-based behavior
Often a mixture of each of these
Definition of Root Causes
Human Factors
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Staffing levels, staffing skill mix, staff orientation, inservice education, competency assessment, staff
supervision, resident supervision, medical staff
credentialing/privileging, medical staff peer review,
other (e.g., rushing, fatigue, distraction, complacency,
bias)
Communication
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Oral, written, electronic, among staff, with/among
physicians, with administration, with patient or family
Definition of Root Causes
Leadership
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Organizational planning, organizational culture,
community relations, service availability, priority
setting, resource allocation, complaint resolution,
leadership collaboration, standardization (e.g., clinical
practice guidelines), directing department/services,
integration of services, inadequate policies and
procedures, non-compliance with policies and
procedures, performance improvement, medical staff
organization, nursing leadership
Definition of Root Causes
Operative care
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Operative care planning, blood use, and/or patient monitoring
Information Management
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Confidentiality, security of information, data definitions,
availability of information, technical systems, patient
identification, medical records
Assessment
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Adequacy, timing, or scope of; assessment; pediatric,
psychiatric, alcohol/drug, and/or abuse/neglect assessments;
patient observation; clinical laboratory testing; care decisions
Most Frequently Identified Root Causes of
Sentinel Events Reviewed by JCAHO
Root Cause for Operative/ Post-Operative
Events Reviewed by Joint Commission
Root Causes for Retained Foreign Objects
Root Causes for Wrong-Site, WrongSide, Wrong-Procedure
Legal Perspective on these Errors
Nursing Malpractice
Patient Must Establish Four Elements to Prove
Medical Negligence
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Duty (also known as Standard of Care)
Breach
Causation
Damages
Duty
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Duty of the nurse is to provide the level of care
required of other similarly situated professional in
the same or similar field
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Requires expert testimony
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Reasonable skill and care
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Universal Protocol and other standards usually guide
the duty
Hospital’s or organization’s policies, procedures also
can establish the standard
Res Ipsa Loquitur
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“The Thing Speaks for Itself”
Basically a Presumption of Negligence.
Required elements:
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(1) Injury does not happen without someone’s
negligence;
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(2) Exclusive control of person or thing causing
injury; and
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(3) Patient did not voluntarily act or contribute to
injury
Causation
Causation in Fact
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Substantial Factor
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Provider’s actions do not have to be sole cause
“More Likely than Not” that injury was caused by
Health Care Provider
Legal Causation — Foreseeability
Expert Testimony Usually Necessary
Damages
Present Economic Damages
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Medical and other health care expenses
Lost earnings in the past
Lost time
Rehabilitation expenses
Other economic losses
Damages
Future Economic Damages
• Medical and other health care expenses
• Life care expenses
• Permanent injury/ scarring
• Lost earning capacity
• Other economic losses in the future
Damages
Non-economic damages
• Damages for pain and suffering
• Loss of enjoyment of life
• Hedonic damages
Professional Discipline
Professional Discipline
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In most states, a licensed nurse may be
disciplined if:
– he “[h]as willfully or negligently acted in a manner inconsistent
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with the health or safety of persons under his care”
he “[h]as negligently or willfully practiced nursing in a manner
which fails to meet generally accepted standards for such nursing
practice”
he “[h]as violated the confidentiality of information or knowledge
as prescribed by law concerning any patient”
Discipline could range from letter of
admonition, to financial sanction, to loss of
license
Techniques for Avoiding Legal
Risks With Wrong Side/Wrong
Site/ Wrong Procedure Errors
Techniques
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Robust communication among the entire
surgical team
Strong leadership invested in a culture of
safety
Avoid distractions
Follow Universal Protocol
Ensure consistency of staff
Stick to the routine
Analyze all contributing factors
Disclosure
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When learn of an error, disclose it to patient
Disclose what will be done to mitigate against the risk in the
future
Report events to hospital or organization
Follow the quality management protocol
Have a system in place to compensate patient for out of pocket
expenses
Have a system in place for disclosure
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Properly disclosing an error requires training and
experience
Should involve the whole care team
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The end