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Seeking accountability, improving safety.

Patient safety should be of paramount concern to a hospital. If economic considerations or protecting physician or hospital relationships are a higher priority than patient safety, the public should know it. By exposing such derelictions of duty, we can help our clients and bring about change to protect future patients.

One credentialing claim stands out in my memory as an example of how the civil justice system can hold a hospital accountable for ignoring clear warning signs about a doctor who represented a threat to patient safety. A local orthopedic surgeon, who had been respected in the community, was near the end of his long career when he suddenly started performing a large number of spinal surgeries with pedicle screw instrumentation. The expense to patients for these surgeries was many times that of a conventional spinal surgery, as were the hospital-related charges (anesthesia, operating room expenses, charges for the surgical hardware, and so on).

The risks involved in these procedures were also many times greater than with a laminectomy or spinal fusion. Unfortunately, the surgeon's patients were plagued with bad results, serious complications, and the need for repeated surgeries. These injuries and problems increased the hospital charges because of the need to treat the complications that the surgeon had created.

The surgeon, who had been on the staff for many years and was one of the hospital's "good old boys," was allowed to perform these surgeries without anyone questioning his competence and training. In addition, nobody questioned his motivation in starting to treat so many patients with this novel, risky, and expensive surgery. As he performed more surgeries, the trail of horrible results and serious complications grew.


Eventually, some of the patients found their way to our office. As we interviewed more and more of them, we wondered why a respected surgeon would suddenly resort to performing such an extreme procedure on so many patients. We contacted several attorney friends to learn more.

With a few phone calls, we quickly learned that it was well known that this doctor had made some unfortunate personal investment decisions and lost a tremendous amount of money. A quick check of the court records confirmed that he was having serious financial problems.

The motivation to perform procedures that generated huge surgical fees seemed obvious. The hospital allowed the doctor to proceed without restriction, and both realized huge profits at the expense of the patients who were seriously injured.

Proving negligent credentialing is usually a challenge because of the privileged nature of the peer-review and quality-assurance activities in hospitals. We are usually unaware of other patients who become victims because of the peer-review process and patient confidentiality obstacles. However, in Florida, evidence considered in peer review can be used when obtained from the original source, even though the details of the hospital's protected peer-review action are not discoverable or admissible.

In this case, we knew who many of the victims were because they had contacted us with concerns about their care. The outcomes the patients experienced should have prompted hospital investigation and action if the staff had followed quality-assurance requirements. Each patient became a potential witness to demonstrate why the surgeon should have been stopped--or never permitted to do this type of surgery at all.

When asked about obtaining informed consent from his patients, the doctor testified that he was unaware of the risks or the potential for the complications his patients experienced when he began doing the surgery. He said he learned about the risks and complications as he proceeded.

This testimony supported our contention that allowing him to perform this risky surgery was unacceptable. How could any patient provide informed consent for the procedure when the surgeon was learning about the risks as he went along?

The hospital had quality-assurance guidelines that should have ensured that the trail of complications and injuries was discovered. Armed with the hospital rules and regulations, the applicable statutory quality-assurance requirements, and a dozen or so victims of the procedure, we established proof that this doctor should have been stopped. We also demonstrated that by failing to take action, the hospital generated enormous profits.

Because of peer-review protection, hospitals' actions regarding staff privileges and quality assurance escape public scrutiny. We will never know what action this hospital took once the dozen or so cases arising from its negligent conduct were settled. However, because the factual information becomes available to the public and the media when lawsuits are filed, it is my hope that the payments generated by settlements and the potential for adverse publicity from such suits would lead the hospital to make the facility safer.

For decades, hospitals have hidden behind independent-contractor and peer-review defenses to avoid responsibility for injuries caused by incompetent doctors. The law in most states has now evolved to prevent this injustice when hospitals allow unsafe physicians to obtain or retain staff privileges. In my view, it is a public service to expose hospitals that bend their rules and protect their physicians, rather than protecting the patients who come to the hospital.

If the business of running a hospital follows common sense and reason, a hospital accepting responsibility for failing to protect patients will do more to protect future patients from similar risk than a thousand new rules to be followed in a confidential peer-review setting. Accountability should promote change.

TOM MASTERSON is a partner at Masterson Law Group in St. Petersburg, Florida.
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Author:Masterson, Tom
Date:Sep 1, 2008
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