Episode 071: The Case of the Right Knee

Speaker 1: You are listening to Your Practice Made Perfect; Support, protection, and advice for practicing medical professionals brought to you by SVMIC.

Brian: Hello. Welcome to this episode of our podcast. My name is Brian Fortenberry. Today we are going to be talking about another closed claim. A case that is unfortunate and one of those kinds of cases that you go, "How does this happen?" But that's what we're going to talk about today. Joining me to have this discussion once again, Katy Smith, J. Baugh. Guys, welcome.

Katy: Thanks.

J. Baugh: Thanks. Good to be here.

Brian: Once again too, let's talk a little bit about your backgrounds before we get started. I think it's always great to remind our listeners what experiences that both of you have and the extensive experience in particular with SVMIC and our claims department and the great job that your department does there. Katy, you go ahead and start.

Katy: Well, thanks Brian. Glad to be here today. I'm an attorney in the claims department. I've been an SVMIC for over 12 years. We are all lawyers on our claim staff. So I'm a licensed Tennessee attorney and I practiced previously before joining State Volunteer and in that prior job I had the privilege and the opportunity to assist with defending and representing SVMIC insureds when they were sued.

Brian: And J?

J. Baugh: I have been in the claims department at State Volunteer for the last 18 years. My undergraduate degree is in accounting and I have a license to practice as a CPA and also a license to practice as an attorney.

Brian: I do want to point out though, Katy makes a great point that in our claims department it is not just adjusters. It is all attorneys. So we have a vast amount of experience for our policyholders in that department to help them through these toughest of times, right?

Katy: That sounds great. And also just their everyday questions. J and I get a lot.

J. Baugh: Yes we do. We're not just there to take new claims. We're also there to talk about any legal, medical questions that any of our policyholders might have. We have 17 attorneys in the claims department. So there's always someone available to be able to answer anyone's questions.

Brian: So today we're going to discuss a closed case involving one of these classic wrong site surgeries.

This case involved a middle-aged male patient with complaints of injuries, of pain that was waxing and waning in both of his knees. And while the injury was new, he had complained of knee pain over the years before the injury took place. So Katy and J, what can you tell us about the patient's injury and the prior knee pain that is discussed here?

Katy: Well, like many middle-aged people, I know I'm at that point myself, he had developed knee pain over the years in both of his knees. He kind of had some waxing and waning complaints. Varying injuries or just complaints of pain. He had been to see one orthopedist, had been treated conservatively, and then up to the point that brings us to this claim, had just transferred his care to a new orthopedist and was seeing this new physician for just complaints in one knee.

J. Baugh: That's right. He had pain in both knees at different points, but when he came to see our insured, that's at issue in this case, he had only wanted treatment for the right knee. Apparently it was more symptomatic than the left. And so after some conservative treatment by another physician, our insured in this case decided to schedule a right knee arthroscopy.

Brian: Okay, so he was having a knee procedure. But this was done by a different physician than originally had seen him. Is that correct? Is this a second opinion?

J. Baugh: Yes, that's right. Yeah. This was a second opinion. After having conservative treatment by one physician, he then went to seek a second opinion from another physician and he was the one that scheduled the surgery.

Brian: So which knee was the initial procedure done? Was it the right knee?

Katy: The knee at issue, for purposes of this closed claim, is right knee.

Brian: Okay. But he complained about issues with both knees, correct?

Katy: In his prior medical care. That's right.

J. Baugh: Yes.

Katy: Kind of waxing and waning complaints in and out with both knees over a course of years.

Brian: We have a wrong site surgery here. We're talking about the right knee is what we're being evaluated for, but the left knee was obviously not without issue.

Katy: Correct.

Brian: It had been a problem as well.

J. Baugh: That's right.

Brian: So what can you tell me about the day of the surgery itself? 'Cause this is where things obviously go wrong.

Katy: I think it was a busy day for this surgeon, first of all. This claimant's case was the ninth surgery of the day. He was being treated at a surgery center. So a local ambulatory surgery center. The surgeon did go and speak with the patient preoperatively, though I think it was a couple patients out. So maybe he had two or three cases in front of him. But the surgeon was able to speak with the patient and did mark on the leg. J, what was that marking?

J. Baugh: Well, the surgeon had marked on the right leg. He had marked, "Yes." And he marked his initials and he put that on the right front, mid leg of the patient. He wrote yes and his initials. The surgeon next saw the patient in the O.R. after the patient had been prepped and draped for surgery.

Brian: A thing that I've picked up on already that we're talking about. We're talking about right knee surgery and the marking was not necessarily on the knee. It was on the mid leg.

Katy: Correct. And so their patient's ready. The left knee at this point has been prepped. There's a timeout that's called. Apparently the timeout referenced surgery to the left knee. So it made it through the timeout process and surgery was performed. There was something for the surgeon to operate on and was successful, apparently.

J. Baugh: Well, that's a good point. That there must have something for the surgeon to operate on. That once he got into the left knee, even though that wasn't the correct knee, he didn't go in there and see nothing that needed to be done. He saw a knee that he needed to operate on and so he went ahead and did the procedure that was necessary for the patient. Now, it wasn't the knee that he had been talking about to that particular surgeon, but once he got in there, he felt that needed to be operated on.

Brian: And to that point, J, early on we were talking about this is a patient that obviously had some chronic knee issues that had lasted over a period of time.

Katy: Bilaterally.

Brian: So there were probably issues in both knees. You, as a surgeon, come in, there's one knee that is draped, it is prepped, you perform the surgery. To your point, you get in there, you see meniscus tears, you see whatever it is you're going in for and you fix it. The question becomes now at what point was it realized that the wrong knee was operated on? Was it in the recovery room?

Katy: Yes, it was in the recovery room and it was realized by the patient.

J. Baugh: Yeah, the patient wakes up and realizes that the left knee was operated on instead of the right knee, and so he told the staff and the surgeon what had happened. Although there really wasn't a clear explanation to the patient as to how the wrong site surgery had occurred.

Brian: So the patient discovers the issue, points it out, I'm assuming to the postoperative staff that is there. At that point, what do they do? Do we know what procedures are taken at that point? Do we know how they react? Is the physician informed at that point? Are we aware of that information?

Katy: We are. And I think this surgeon and this facility handled it the way that I certainly would have recommended had they called in to us. The surgeon, I'm sure, apologized that the surgery occurred on the wrong site. The patient wasn't charged for anything having to do with the surgery. Both the surgeons charges and the surgery center's charges were waived. The surgeon developed a plan with the patient. You know, we're going to wait, we're going to let this knee heal. Come back and see me when you're ready. We will schedule the surgery on the intended knee, the right knee. And that was the plan and everything I think was looking pretty good at this point.

J. Baugh: Yeah. The doctor had a plan to see the patient in one week. He was going to evaluate the left knee and see how it was doing and then also discuss surgery that needed to be done on the right knee.

And so he came back for followup and the left knee was doing fine. It was healing well. And then he was scheduled to come back in two weeks. But the patient decided to transfer his care to another orthopedist and that orthopedist decided to do a right knee replacement about six weeks later.

Brian: Okay. So the patient made the decision to transfer the care to another orthopedist, at that point, to handle that situation?

J. Baugh: That's correct. That was the patient's decision.

Brian: No physician, no doctor, no healthcare employee at all, ever wants to do a wrong procedure or a correct procedure on a wrong site. That's a traumatic thing for the physician to find out.

J. Baugh: That's right. And he has to admit to the patient that we need to do surgery on the right knee and we need you to come back and we'll take care of you if you would like for us to do that. But in this particular situation, the patient decided to seek care elsewhere.

Brian: So I'm assuming a claim was filed at this point, is that correct?

J. Baugh: Yes. He filed suit against the doctor and the nurse and the hospital because of the wrong site surgery. And he wanted an award for his medical expenses related to the later surgery that had to be done on his right knee, for pain and suffering, lost earnings due to the wrong surgery and the delay in recovery time.

So you know, those are typical types of damages that we see patients seeking when they file a lawsuit. And in this particular case, the patient also saw punitive damages, which is a little different.

Brian: Oh, okay.

J. Baugh: Other than what we see. But he did want punitive damages, which are intended to punish the defendant for what happened.

Brian: In this type of case, and this is kind of a broad question when it comes to all physicians, and this is a wrong site surgery. But often not always, but often after something goes wrong in a procedure, the physician knows fairly quickly, "Uh oh, this is not going to be the outcome that I'm hoping for. Something went wrong." At what point in that process should the policyholder reach out to the claims department?

Katy: They can call us at any time. Anytime they have any concerns. They can call our 1-800 number, our main line, you'll speak with some of our administrative staff and they'll get you hooked up with one of the lawyers just to discuss whatever concerns you have. I think it kind of goes back to that instinct. If you're worried about a case, if you're worried about a situation, an interaction with the patient, certainly this is kind of an overt example, you've had a wrong site surgery. But just call us. You cannot call too early. You don't need to wait until a suit is filed. We are glad to help you at whatever point in the process we can be of assistance.

J. Baugh: Yeah. I've told physicians in the past when they've asked me this question, if you're not sure whether you should call us or not, then go ahead and call us. I mean there's no reason not to.

Katy: It won't damage your standing with our company. Certainly, we appreciate the call and we're glad just to be of assistance to you.

Brian: And Katy, you can walk them through the process at that point, right?

Katy: Sure, sure.

Brian: 'Cause SVMIC been in business now 40 plus years. So this more than likely is not the first time this company has seen something like this and has experience in helping you through it, right Katy?

Katy: Right. And I'm also hopeful that we can put some worries at rest. I'm sure that this orthopedist felt this. And Brian, you mentioned it earlier. You're heartsick over this type of thing. How does this happen? Just giving the opportunity to talk it with one of us. Just talk through the story and go through it, get the details recorded, have a potential claim file open. Hopefully, that's also helpful to the physician.

J. Baugh: And getting the details recorded, Katy, is really important for them to call us early and let us know that while their memory is still fresh, while they understand and remember what happened. Just like you want to document in a patient's chart as soon as you can what happened. If there's a situation in which you want to call us, you need to do that as early as possible so that we can document what happened on our side.

Brian: So now you get informed that there's been an adverse outcome here and there's obviously like we said, a suit that is filed. How was this case handled? What happened here?

Katy: Well, it was ultimately settled. I think a mediation occurred and it was settled. One of the issues that was addressed during the mediation was the difference of opinion between the hospital, the surgery center, and the orthopedist as to who should be more responsible. Which kind of goes back down to the key issue in this case is, whose fault was this? How did this happen? How was surgery performed on the wrong site?

J. Baugh: And both sides had good arguments about that because the time out was not called correctly, the patient was not prepped properly, but the physician wrote his initials and the word, "Yes" at a place in which it could not be read once the patient had been draped. So both sides had some fault as to what happened here. It was just a matter of trying to work that out at a mediation and sometimes that happens in a mediation. It's not so much the defendants against the plaintiff, it's the defendants working amongst themselves to try to determine who should get what percentage of fault.

Katy: And here they were able to work that out ultimately.

Brian: Certainly this is a situation that no physician wants to have to deal with. Hopefully this is a situation that doesn't come up very often because there is a lot of steps along the way. Any of us that have been to a surgeon, that you are having a procedure done, you're well aware that you get asked a number of times, what are we doing today and what side are we doing it on and all of those things. So ad nauseam they go into trying to avoid this so it is heartbreaking when it does happen. Not only for the patient but for the physician themselves. Our job here today, or at least what we hope to do, is to try to help other physicians avoid this type of situation.

That being said, what is some good advice, key takeaways from this case, that we could help our physicians avoid this in the future?

Katy: Well, I think, J, they should really dial into these safety mechanisms that were created and intended to prevent this type of situation. One obvious one is the marking of the surgical site. Marking probably should have been on the operative site itself. Definitely needs to be in a location that is going to be visible after the patient's draped. If it's a situation where there's a parallel surgical site, maybe mark, "No" on that.

Brian: That's a good point. That is a great point.

J. Baugh: Yeah. You need to not only think about what it is that you're doing that will help you to provide care to the patient in a better way, but also how your plans interact with those of other healthcare providers, with the nurses and the hospital administration and everyone getting on the same page. I'm going to do this for this reason. Will that work if I do it that way based on what you're going to do?

So if the surgeons and the nurses had these conversations ahead of time and said, "I'm planning to make this marking here, will that be visible?" Then if the parties get together and sort of talk through some of these issues, I think that would help improve patient care.

Brian: When you go through this process, it's there for a reason. It's not just to check a box and it really is an important part of the process. Like we were saying earlier, Katy, this was like the ninth patient of that day. That's a busy day.

Katy: Busy day.

Brian: There's a lot going on and every patient is important, but it gets into the monotony of the next patient, the next patient, and you're trying to get through it. But that timeout and all of that attention to detail of the "Yes" in the right place and the "No" and all of that, it's much more than just checking a box.

Katy: Dial into it. Don't be kind of numbed by the repetition of it, I think.

J. Baugh: Yeah, you have to remember that the steps that you're taking are not just because the protocol said you had to do it. Or some board of administrators says you have to do it.

Brian: Right.

J. Baugh: It's being done because you're trying to improve the quality of patient care and so think about what you're doing in terms of how is this going to help the patient.

Brian: Katy, J, thank you so much for taking the time to be here today to discuss this. A lot of information there, but I am certain that our policyholders will find this very helpful.

Katy: Glad to be here.

J. Baugh: Thank you for having us.

Speaker 1: Thank you for listening to this episode of Your Practice Made Perfect, with your host Brian Fortenberry. Listen to more episodes, subscribe to the podcast and find show notes at SVMIC.com/podcast. 

The contents of this podcast are intended for informational purposes only and do not constitute legal advice. Policyholders are urged to consult with their personal attorney for legal advice as specific legal requirements may vary from state to state and changed over time.