Tuesday, November 27, 2012

Patient Safety Tip: Avoid Afternoon Surgeries (And Friday Surgeries Too!)

A recent CNN article from a surgeon makes a good case for avoiding afternoon surgeries if at all possible.
The reason? Your surgical team might be sleepy. He argues:

Our bodies follow natural circadian rhythms, which regulate our sleep/wake cycle, brain wave activity and certain bodily functions. These circadian rhythms dip between 3 and 5 p.m. each day, causing many of us to feel sleepy.

I hear ya, Doc! Everyone hits a lull during the workday, especially after lunch. Combine that with a busy surgical schedule that often starts around 7:00 a.m., and it's easy to see why drowsiness and inattention might set in in the Operating Room.

From our experience in handling Ohio malpractice claims, I would add Friday surgeries to the list to avoid. Although not scientific, I have seen an anecdotal correlation between Friday surgeries and medical negligence. I recall distinctly two cases where physicians were in a hurry to "finish up" at the end of the day, and performed procedures that should have waited until the patients were more stable. Another involved a surgeon who made a mistake during the operation, and assumed the patient's immediate post-operative symptoms were "normal" when a CT scan would have revealed the surgical error. The patient was sent home, only to return the following Monday with life-threatening symptoms.

My best guess is that midweek morning is probably the best time to schedule any procedure. There is something to be said for "hump day" after all...

Monday, November 26, 2012

Does Signing A Consent Form Prohibit You From Bringing An Ohio Medical Malpractice Claim?

"Well, the doctor may have screwed up but the patient did sign the consent form, so....."

This is a common thought amongst jurors or focus groups in evaluating malpractice claims. After all, everyone has to sign the standard medical "consent form" for any procadure whether it's a colonoscopy or bypass surgery. But as ESPN college football analyist Lee Corso says, "not so fast, my friends...."

Medical negligence claims in Ohio can be divided into two basic groups. One is "informed consent." Basically, this means that every physician has the obligation to inform you as a patient of all the material risks and benefits of any procedure, so you can make an intelligent decision as to whether to go through with the procedure. The "risks and benefits" of the procedure are usually covered through a combination of discussions with the physician, and the medical consent form.

I don't care how minor the procedure, the consent form usually has some standard or "boilerplate" acknowledgment that the procedure can potentially cause bleeding, infection, paralysis, or even death. You could probably find that language in a consent form for removal of a hangnail. This is standard "CYA" language that protects a physician from a claim that he/she did not  provide proper "informed consent" before the procedure.

But Ohio law makes it crystal clear that giving proper informed consent does not excuse the physician from performing the procedure in a negligent manner. Some examples illustrate this point. For example, if you sign a consent form for amputation of your right leg, the physician is still negligent if your left leg is inadvertantly cut off. Similarly, if a foreign object is left inside your body after surgery and causes major injury or death, the physician or hospital is negligent, and can't hide behind the consent form that warns the patient of the risk of injury or death.

Likewise, if an anesthesiology consent form advises of the risk of brain damage or death, the anesthetist can still be held liable if he/she allows a patient to lapse into anoxic brain damage due to a failure to properly monitor the patient's breathing or respiratory status during or after the procedure.

Bottom line: a consent form does not give a physician or hospital a license to perform the procedure in a negligent manner. In other words, you as a patient can't "sign off" on the physician's negligence.      

Tuesday, November 20, 2012

"How Much Should I Ask For In A Settlement?"

Occasionally we get this question from someone "going it alone" without an attorney. First, there are quite a few reasons NOT to represent yourself in your personal injury claim (and 1 reason where it's OK) as I wrote about in our book: "Your Ohio Accident Claim: Sorting Through The Insurance Maze (available for free through our website www.n-wlaw.com).

But if you are inclined to roll the dice with the friendly adjuster and the insurance company, the true answer to this question is: it's really hard to know without knowing a lot of detail about what happened. Was the collision a 5 mph love tap in the mall parking lot, or did someone run a stop sign at 45 mph and obliterate you? Were you hit by a slobbering drunk driver who fled the scene and later blew a .018--double the legal limit--or a nice elderly woman coming home from the church picnic?

These things make a difference.

More importantly, as we like to say, the "devil is in the details." One of the first things I do to evaluate an auto or motorcycle accident claim is to order and then read your medical records. They are liable to say ANYTHING, and they can make a difference in the evaluation of your claim. Take, for example, this entry in a client's physical therapy records from a few years ago:

"Patient reports increased pain after playing 17 games of softball over the weekend."    
Now this client was in a really bad crash and she needed quite a bit of doctor ordered physical therapy. But her auto accident injury claim ended with that PT entry/record. I told her: "If you're well enough to play 17 games of softball, you have recovered from your injuries in the eyes of the insurance company, and any bills you incur after that will not be related to your claim."

You can be sure the insurance company will be reading those records with the blank authorization you gave them to enable them to order the records. And most folks who call me while "going it alone" have not even bothered to read their own records and have no idea what they say (yet another big mistake they make while representing themselves).

This is just one example of why it is very difficult--and frankly quite stupid--for any personal injury attorney to give an opinion of claim value over the phone. I tell my clients the same thing at the initial client consultation: "I will eventually be able to give you a value or a range of values on what your injury claim is worth, and I'll meet with you in person and go over it. But only after I have reviewed  everything--the police report, all of your records, bills, EOB's, lost wages, photographs, and other materials. If you're looking for an instant evaluation on the first visit, you've got the wrong person and need to go elsewhere."

I say this even in situations where I have a good idea as to where the claim may go in terms of settlement value. Sometimes little things crop up that you discover that sway the value of a claim in either direction--both good and bad.

Knowing where to look separates us from the guy or gal who has never negotiated a single auto collision claim against an insurance company, much less their own.

Handling, evaluating, and negotiating auto, motorcycle, or truck accident claims may not be the equivalent of preparing a seven course meal for a table of food critics. But it ain't "instant oatmeal" either. Some attention to detail, and some good old fashioned time, are necessary ingredients as well.

Thursday, November 1, 2012

Anesthesia Errors During Outpatient Procedures--Some Questions To Ask Your Team

Many patients have the perception that anesthesia in simple outpatient procedures is "no big deal." After all, day in and day out, colonoscopies, upper airway endoscopies, and other diagnostic tests under anesthesia go without a hitch. For the most part, they're right.

But anesthesia for any procedure is like airflight: it requires a successful takeoff (introducing the drugs that knock you out, known as "sedation") and a landing (reversing those drugs and returning you to consciousness).  As we all know from airflight, occasionally there is a crash. Unlike an FAA investigation of a plane crash, which is public and transparent, anesthesia error--medical mistakes involving serious injury or death are not investigated for public consumption and education. In fact, many times patients' families are left to guess or speculate as to what really happened behind the curtain.

But from having investigated and handled a few of these cases, here's four basic questions you or any loved one should ask if you're having an outpatient scope or procedure of any kind involving anesthesia:

1. Who is doing the sedation—the Doctor performing the procedure, an anesthesiologist, or a Certified Registered Nurse Anesthetist (CRNA) under the direction of the Doctor performing the procedure?

Take colonoscopies, for example. If the Doctor doing the colonoscopy is also perfoming the sedation (and many do) they tend to give you less sedation than an anesthesiologist might.  They will typically induce you into a state of either "moderate" or "deep" sedation. Moderate sedation means you are arousable to verbal stimuli (“hey Sarah, wake up”).  It's a tradeoff of sorts: You're less likely to get into trouble from a respiratory depression standpoint with "moderate" sedation, but you may feel a bit of pain temporarily.

Compare that to deep sedation, which an anesthesiologist might be more inclined to induce during a procedure. Deep sedation means you are only arousable to painful stimuli, like them pinching you or rubbing your sternum. It's better for pain relief  and amnesia during the procedure but here's a potential problem: sedation is a continuum. Often there's a fine line between deep sedation and "general" anesthesia, which means you're unconscious, even to painful stimuli.

Why does all this matter? One of the major risks of anesthesia is respiratory depression due to the effects of the anesthesia drugs. If respiratory depression occurs, it can cause a lack of oxygen and circulation to the brain, which can cause anoxic brain damage, cardiac arrest, and even death.  You don't need to be "overdosed" on anesthesia drugs to lapse into respiratory depression.

So any patient should want to know: what level of sedation are you shooting for? Whatever that answer is, more importantly the next question is…..

2. How will I be monitored during the procedure?

The gold standard and the BEST AND MOST ACCURATE monitoring is “end tidal C02 monitoring.” This measures how much carbon dioxide (CO2) you expel breath by breath. How much or how little CO2 you’re expelling is the most accurate measurement of how well you’re VENTILATING.

Pulse oximetry (that little thing they put on your finger) only tells you if you’re getting enough oxygen (O2). You can be getting lots of O2 but if you’re not taking it in because the anesthesia drugs are preventing you from doing so by depressing your respiration (you’re not ventilating well), the pulse ox monitor won't necessarily show it until the respiratory depression reaches a crisis level. The CO2 monitor will alert the Doctor/anesthesiologist/CRNA of an IMMEDIATE possible respiratory depression problem.

If you have general anesthesia during an operation, for example, it is standard for your monitoring device to include a CO2 monitor (in addition to the basic vital signs monitoring like BP, Heart rate, pulse oximeter). However, some outpatient centers did not bother with CO2 monitoring for outpatient procedures until recently. In 2011, the American Society  Of Anesthesiology (ASA) mandated CO2 monitoring even for moderate sedation:

During deep or moderate sedation the adequacy of ventilation shall be evaluated by continual observation of qualitative clinical signs AND monitoring for the presence of exhaled carbon dioxide unless precluded by the nature of the patient, procedure, or equipment.

 Why did the ASA mandate CO2 monitoring? According to a 2009 study of outpatient procedure anesthesia error claims or lawsuits spanning 19 years, inadequate oxygenation/ventilation was the most common respiratory-related adverse event in outpatient procedure claims, occurring 7 times more frequently than in hospital operating room claims. And the injuries that occurred in outpatient facilities were more often judged as being preventable by better monitoring.

 So ask the facility or the doctor performing the procedure in the office if they'll be using a CO2 monitor. If they aren't, they’re possibly being cheap and cutting corners on safety and don’t want to spend the money for more advanced monitoring. If that's the case I’d pass and go somewhere else.

3. When I’m moved from the room to recovery, are the monitors kept on or removed?

Most places will leave the monitors on as they transport you from the procedure room to the recovery room. If they don't, that doesn't necessarily mean it's unsafe because it's usually a short trip from the procedure room to the recovery room. But it can be an issue if there was a problem during the procedure (say your heart rate dropped and they had to give you drugs to bring it back up again) and you now need to be moved so the room can be cleared for the next procedure.

4. Are all of your nurses ACLS certified?

This stands for "Advanced Cardiac Life Support." This is training and certification for nurses and physicians so they'll know what to do and what drugs to give if a patient has a life threatening condition during or after the procedure for any reason. Most outpatient centers require ACLS certification. But if you're having the procedure done in an office setting, this may be an important question to ask.

Anyone giving you anesthesia for an outpatient procedure, no matter where it is--hospital, outpatient center, or doctor's office--should be willing to answer these simple questions.