Human Error

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Unfortunately, medical errors do occur despite the best preventative efforts by healthcare providers, facilities, and malpractice insurers. Among these errors are wrong-site surgery, which includes wrong-procedure and wrong-patient (WSPEs) surgery events. The Joint Commission on Accreditation of Hospitals, known as the Joint Commission, accredits all hospitals and most outpatient surgery facilities and ensures that these facilities operate safely and correctly. One of the main goals of the Joint Commission is to ensure patient safety. When a WSPE occurs, the facility must report it to the Joint Commission. Wrong-site surgery is considered a sentinel event by the Joint Commission. When a sentinel event occurs, the facility must convene a Root Cause Analysis, or RCA. The RCA, usually headed by the Chief Medical Officer and attended by all pertinent department heads, quality management staff, and those staff members involved in the error, is an in-depth examination of the error including the cause(s) of the error and a plan of correction to prevent it from happening again. The written record of the RCA must be accepted by the Joint Commission and, after accepting it, the Joint Commission will subject the facility to a period of increased scrutiny. The record of the RCA is confidential and is not discoverable by a plaintiff.

About 10 to 15 years ago, in response to WSPEs, the Joint Commission created a procedure commonly known as a “time out.” Prior to the procedure and prior to the patient being anesthetized, the surgeon, nurse, and patient, usually at the patient’s bedside, must agree on the side and site of the planned surgery. The surgical site is then indelibly marked so that that marking will be visible in the Operating Room (OR) once the patient is prepped and draped. In the OR, prior to beginning the procedure, the surgeon, nurse, anesthesiologist, and others present in the OR must stop, or have a “time out.” At that point all must agree, on paper, that the correct side and site will be operated on and the pre-op marking is visible. If there is not complete agreement or the pre-op marking is not visible, the procedure must be stopped and the process starts again from scratch. Despite this thorough procedure, errors still occur, although at a much-reduced rate.

With the exception of plaintiff malpractice attorneys, most people understand that healthcare providers are human and subject to the same human frailties as everyone else. When an error occurs, healthcare providers in NY State have a legal obligation to tell the patient and/or family about the error and how it occurred. Owning up to, apologizing for, and explaining how the error occurred may sometimes avert a lawsuit, but ignoring the error, the patient, or the family will practically guarantee one.

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