Recording Surgeries and Its Implication in Medical Malpractice Litigation

Recording Surgeries and Its Implication in Medical Malpractice Litigation

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Surgeons face medical malpractice lawsuits when he/she provides care below the standard of care expected or if the patient is harmed. In the surgical specialty, a variety of surgical errors may result in malpractice litigation. Incision error, wrong site surgery, wrong patient surgery, organ/tissue/nerve damage, foreign object in patient, and infection are all counted among surgical errors. Among the reasons quoted for surgical errors are physician fatigue, lack of planning, incompetence, substance abuse, neglect and lack of efficient communication. Proving such a case would involve demonstrating that the surgeon’s treatment fell below the expected standard of care. Usually, a medical record review is necessary to establish the injury caused by the negligence. Many U.S States limit the amount that can be recovered in damages. Once the claim is filed, it will be reviewed by a panel of doctors before it can be heard in a court of law. Being extremely complicated, medical malpractice cases need to be carefully and efficiently handled to ensure optimal results for clients, whether doctors or patients. Attorneys handling such cases hire reliable medical review services to determine the viability of the case and also to obtain medical case summaries and chronologies that are vital in preparing the case.

Recording Surgeries Can Help Identify What Went Wrong Can recording surgical procedures help in malpractice investigation? A “black box” has been developed by a Toronto-based surgeon who believes that data recording and constant analysis will help to minimize surgical errors. It records conversations between providers, the video feed from the surgical camera, and a “gallery view” of the entire operating theatre, and logs temperature and decibel levels. There is indeed a growing public concern regarding surgical errors that are not being disclosed and providers not taking responsibility when such events occur. This is reflected in the proposed Wisconsin and New York bills named after two victims of medical errors, and the concept of surgical black boxes.

The Toronto doctor’s black box is designed for use in all cases to serve as a teaching tool for surgeons and trainees to study their surgical techniques. Other factors such as safety processes,

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communication, disruptions and so on that may have an impact on the patient can also be studied. As a quality improvement venture, the information gathered will be protected and used in a confidential manner.

Surgeons are naturally worried about the data obtained via such recordings being used against them, though it has not been tested legally. They fear that their behavior in the operating room may be misinterpreted by external reviewers who are called in to evaluate the data. However, the important consideration is that the information gathered from computers and cameras can help lower medical errors and improve patient care. Providers can better coordinate their actions and identify where errors are occurring, and how the design/workflow of an operating room can be improved.

Recently, a patient in Virginia won a case that granted him $500, 000 as he could prove that the operating team mocked him during surgery. The patient had set his phone to record the postsurgery instructions given to him before he was administered anesthesia. He forgot to turn his phone off during the procedure. The patient sued for medical malpractice and defamation and the recorded audio was used in the lawsuit against the doctors.

Maybe a Good Move, Maybe Not ‌.

There is a concern whether moves such as this will actually prove beneficial to patients or end up being adverse. While it is true that recording surgeries will provide patients more information later on and what actually went wrong, it may make the providers nervous knowing that their every move is being recorded. It may put doctors on the defensive and have a negative impact on their confidence. Recording surgeries in the operating room is therefore something to be implemented after very careful consideration, taking into account all possible repercussions.

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