Legal News

'Wrong site' surgeries on the rise
By Robert Davis, USA TODAY

Despite years of patient-safety efforts, an increasing number of health care facilities have reported mistakenly removing the wrong limbs or organs, slicing into the wrong side of bodies and performing surgery on the wrong patients. "It's getting worse," says Dennis O'Leary, who heads the non-profit Joint Commission on Accreditation of health care Organizations, which inspects more than 15,000 hospitals and surgical centers nationwide and sets patient safety requirements and guidelines.

Last year, health care facilities reported 84 operations to the commission that involved the wrong body part or the wrong patient. While some states require hospitals to report such blunders, many hospitals across the nation are not obligated to account for them publicly.

"I can assure you that this is just the tip of the iceberg," O'Leary says. "Some hospitals are reporting everything and some hospitals don't report anything at all."

A new study documents cases in which surgeons operated on the wrong arm, the wrong rib and in one case the wrong person, among other mistakes.

The study of 2.8 million operations over a 20-year period, published in today's Archives of Surgery, suggests that the rate of "wrong site" surgery anywhere other than the spine is 1 in every 112,994 operations. The study excludes the spine, the authors explain, because surgical sites on the spine are verified with X-rays, in contrast to the apparent simplicity of marking the correct knee or ear in advance.

The study, funded by the federal Agency for health care Research and Quality, concludes that the rate is "exceedingly rare" but "unacceptable."

Patient safety experts say more vigilance is needed.
"We're trying to get the number down to zero," says Donald Palmisano, a New Orleans surgeon on the non-profit National Patient Safety Foundation's board of directors. "It is such a catastrophe when this happens."

Since 2004, doctors have been required by the joint commission to mark the spot they plan to cut while consulting with their patient before surgery. The commission also encourages patients to insist on such a mark.

Nurses are supposed to call a "time out" in the operating room, according to commission protocol, calling everyone's attention to a final safety check in an effort to ensure that the right procedure is performed on the right patient.

But some surgeons, particularly those who believe they would never make such a stupid mistake, often ignore the safety protocols, says one chief surgeon. "They think this is useless," says Glenn Rothman, chairman of surgery at Banner Desert Medical Center in Mesa, Ariz. "Doctors fight it because they are the captains of the ship. There is a lot of resistance to standardized conduct."

Doctors and nurses spar over the safety checks.
Rothman says some surgeons make a tiny, mole-sized mark on a patient instead of a big, bold "X."

"I call them passive-aggressive marks," Rothman says.
He is working to develop a standard stamp to put an end to such conflicts in his hospital and in others nationwide.

Some surgeons all but ignore the nurse's call for "time out" before the operation begins, Rothman says.
"Doctors think nurses are just trying to torture them," he says.

Both Rothman and O'Leary say the way doctors and hospitals are paid contributes to the problem. There is no financial incentive for practicing safer medicine, O'Leary says, because hospitals want operating-room staff to move patients through quickly.

It can be "dangerous" if speed is a measure of operating-room performance, Rothman says.

Doug McCoy is no stranger to the inner workings of a hospital. And the 43-year-old medical-device repairman was completely at ease in September when co-workers at Maricopa Medical Center in Phoenix wheeled him into an operating room.

But instead of removing a tumor from McCoy's right ear, the team operated on his left ear — which had no tumor. He reached a settlement with the hospital and the surgeon, agreeing not to disclose the doctor's name or the amount of money he received.

Peter Crowley, the risk manager for Maricopa County who spoke on behalf of the medical center, suggests that it's important to have perspective, noting that the McCoy operation was just one of 6,400 surgical procedures performed last year at the hospital.

While Crowley could not discuss specifics of the McCoy case, he said that "a very thorough analysis was conducted" and that "procedures to avoid a recurrence were immediately implemented."

The researchers in the new study note in a prepared statement that, "No protocol will prevent all cases.
Therefore, it will ultimately remain the surgeon's responsibility to ensure the correct site of operation in every case."

But McCoy is afraid to return to the operating room to have the benign growth removed. "My doctor couldn't apologize enough," McCoy says. "But if he can't even do the right ear, how is he going to do the procedure right?

"There are so many mistakes that can be made," he says. "I don't trust them."

Tort reform didn't reduce doctors' insurance rates
Dr. Kelly B. Thrasher

As a Georgia physician who has struggled, along with all of my colleagues, to keep up with steep insurance premium increases over the past years, I take issue with state Rep. Tom Rice's position that continued rate increases are indicative of the success of tort reform.

In the Dec. 9 Chronicle, Rice trumpets Senate Bill 3, the omnibus tort reform bill that passed the General Assembly in February 2005, as an effective, proactive solution to the insurance woes that I and so many of my colleagues still face ["Georgia's tort reform already showing beneficial results"]. As evidence of the success of Senate Bill 3, Rice points to downsized rate increases -- not rate reductions. A rate reduction would be the obvious signal of success for such a large, contentious package of legislation, but the bitter reality in Georgia for physicians and patients alike is that not a single insurance company has lowered their rates in the 11 months since Senate Bill 3 became law.

In fact, Rice's Republican colleague in the House, Rep. Chuck Sims told the Douglas Daily News in November that malpractice insurance rates have not decreased. "In fact," said Sims, "it's gone up." Sims adds that the Medical Association of Georgia, which represents about a third of the state's physicians, "was misinformed about tort reform and malpractice insurance" and "informed physicians that their malpractice insurance would decrease if the legislature passed a tort reform bill."

What a bitter pill for many in the medical community to swallow after four years of debate over this silver bullet called tort reform.

In September, the National Association of Insurance Commissioners (NAIC) announced that "the U.S. property and casualty insurance industry... holds assets in excess of 1.3 trillion dollars." From 2002-2003, when insurance costs for physicians were skyrocketing, the Property Casualty Insurers Association of America documented a historic, record-breaking 900 percent profit increase for the industry, in which pure profits increased from $3 billion to over $29 billion in one year. Amazingly, industry analysts A.M. Best and Weiss Ratings Inc. reported that the industry almost doubled that profit in 2004, with final profit figures topping $41 billion.

Not surprisingly, the timing of these windfall profit increases for the insurance industry parallels the same time period that the American Medical Association christened the "crisis years" for the medical community. Yet, during hours of hearings held earlier this year at the State Capitol, none of Rep. Rice's friends in the insurance industry were called to answer any questions.

Even "doctor-owned" MAG Mutual, the state's largest medical malpractice insurance provider, failed to participate publicly. Of course, MAG Mutual posted a profit in 2003. According to the former insurance commissioner in Missouri, MAG Mutual increased doctors' premiums by 53.5 percent from 2002-2004, but projected a 33 percent decline in future payments to plaintiffs and claimants. Not surprisingly, MAG Mutual holds almost three times the surplus deemed adequate by the NAIC.

There is no doubt in my mind that wild, unchecked increases in the cost of malpractice insurance drove many good physicians out of business, particularly in rural Georgia. That crisis still rages here in Georgia at the expense of the medical community -- a crisis of accountability in the Goliath insurance industry. Unfortunately, the so-called "reform" in Senate Bill 3 does nothing to hold insurance companies accountable to their policyholders -- or to the state insurance commissioner, for that matter. Without real reform targeting insurance industry greed that is clearly at the root of recent rate hikes, the medical community will never enjoy the "stability in medical costs" that Rice hopes for.

http://atlanta.bizjournals.com/atlanta/stories/2006/01/16/editorial3.html