Recording Surgery

The results of a study published in the journal Surgery (Rogers, Selwyn O., M.D., M.P.H., et al., “Analysis of Surgical Errors in Closed Malpractice Claims at 4 Liability Insurers,” Surgery, Vol. 140, Issue 1, Pages 25-33 (July 2006)), which examined 444 closed surgical malpractice claims from four different medical liability insurers, revealed that 58% of surgical errors resulted in patient injury. Of those cases, 23% led to patient death. The study's authors concluded that systems factors, including lack of technical skill by the surgeon and communication breakdown among providers, contributed to error in 82% of the cases.

In a similar study published in the Journal of the American College of Surgeons (Greenberg, Caprice C., M.D., M.P.H., et al., “Patterns of Communication Breakdowns Resulting in Injury to Surgical Patients, J Am Coll Surg, Vol. 204, Issue 4, Pages 533-540 (April 2007)), the authors found that serious communication breakdowns during surgery ' typically between surgical attending physicians and other providers ' often resulted in harm to patients.

Based on the results of a comprehensive national medical malpractice analysis conducted by researchers at Johns Hopkins Medicine in 2012, roughly 4,044 surgical errors occur in the United States each year, and roughly 80,000 surgical errors occurred at U.S. hospitals between 1990 and 2010. Looking at information from the National Practitioner Data Bank, the researchers determined that, during that 20-year span, approximately $1.3 billion was paid out on surgical medical malpractice claims. The researchers estimate that surgeons leaves foreign objects inside a patient's body after an operation 39 times a week; perform the wrong procedure on patients 20 times a week; and operate on the wrong body part or body site 20 times a week. The researchers suggest that these estimates may actually be on the low side.

Proposed Legislation

In Wisconsin, Rep. Christine Sinicki (D-Milwaukee), has introduced legislation that would permit patients to have their surgeries audio-visually recorded. According to an article from the Milwaukee-Wisconsin Journal Sentinel, if passed, the bill would require health care facilities to give surgical patients the option of having their surgery videotaped. It would also allow patients to execute advance directives indicating that they wished to have all of their surgeries recorded. The law would be named for Julie Ayer Ribenzer, a 38-year-old woman who died after receiving too much of the anesthetic propofol during a breast implant surgery.

The Wisconsin bill is similar to one recently proposed in New York. It was inspired by 19-year-old Raina Ferraro, a college freshman from Rockland County, NY, who was admitted to Phelps Memorial Hospital Center for a routine endoscopy. According to a medical malpractice lawsuit filed by her parents, Raina went into cardiac and respiratory arrest due to negligent anesthesia administration during the endoscopy, resulting in severe brain damage and a persistent vegetative state. Raina's parents stated publicly that it took the hospital two weeks to discuss the matter with them and, when they did, the hospital was unable to explain what went wrong during Raina's procedure. This prompted her parents to urge New York lawmakers to create legislation that would require cameras in all operating rooms. The purpose of the legislation, dubbed “Raina's Law,” would be to document proof of medical malpractice and ensure that families would be able to understand why a patient had a poor surgical outcome.

The trend toward allowing recording of surgeries is not limited to the United States. For example, a group of lawmakers in South Korea has submitted a bill to that country's National Assembly that would require all hospitals to include cameras in operating rooms, in an effort to prevent medical malpractice. According to an article published in Korea Times , the proposed legislation follows several instances of extreme medical misconduct, including one where medical staff allegedly held a birthday party in an operating room while an unconscious patient lay on the table. Under the terms of the bill, patients would have to consent to the recording of their procedures.

Another Option

In the context of airplanes and motor vehicles, a “black box” is a device that records data at the time of an accident or crash ' things like speed, acceleration and deceleration, whether brakes were applied, whether seat belts were in use, altitude and airspeed. By retrieving and analyzing the data recorded on these black boxes, investigators are better able to determine how or why a crash or accident occurred.

Now, researchers at the University of Toronto and St. Michael's Hospital have developed a surgical “black box” to track a surgeon's actions during surgery, record any errors and, subsequently, help show why a patient had a poor outcome. In addition to its use as a tool to help families and patients understand the reasons for poor outcomes, collecting this data would allow researchers to analyze why surgical errors occur, perhaps allowing them to prevent future such mistakes during surgery. According to the researchers, the device is still in its initial phase, having been used in only about 40 surgeries, all of them laparoscopic weight-loss procedures. However the researchers also report that a number of hospitals, including several in the United States, have expressed interest in the device.

Quality of Care Aids

The development of surgical black boxes, and the above-mentioned proposed laws that would allow audiovisual recording of surgeries, certainly may reflect a growing public concern that surgical errors are not being disclosed, and that doctors and hospitals are not taking responsibility when errors occur. However, the push for them may also be explained by the fact that sometimes it simply is not be clear to patients or medical providers why a patient had a poor surgical outcome.

Currently, the best (and, generally, only) method for determining the causes of operating room adverse events is post-surgical review and analysis. Traditional patient surgical safety research focuses on recreating adverse events, through root-cause analyses, self reporting policies and review of medical malpractice claims. The two studies mentioned at the beginning of this writing both recommended the review of closed medical malpractice claims to aid in identifying errors for improvement to reduce future surgical mistakes. In that vein, it would seem that allowing audiovisual recording in operating rooms would provide additional data to help medical providers understand why errors occur and to prevent future such mistakes.

The idea is not all that new. At a patient safety conference held at Harvard University in 2009, Caprice Greenberg, M.D., M.P.H., a surgeon at Dana Farber Cancer Institute and Brigham & Women's Hospital in Boston, advocated for the use of video during surgery in order to further the study of both performance and safety in the operating room. She noted that video is commonly used on other fields to capture performance for critical analysis.

Medical Malpractice Evidence

Despite their obvious advantages in helping to uncover the causes of bad surgical outcomes, videotaping of surgical procedures and surgical black boxes are not ideas that are universally embraced. For example, the Wisconsin Hospital Association and the Wisconsin Medical Society have both stated that they would oppose Rep. Sinicki's bill. And some doctors have gone on record in opposition to bringing black boxes or cameras into operating rooms.

The chief concern, as to be expected, is that the recordings and data could later be used as evidence in a medical malpractice suit. At the 2009 Harvard patient safety conference mentioned previously, medical malpractice defense attorney Ellen Epstein Cohen pointed out that, as a picture is worth a thousand words, a videotape of a surgery to a plaintiff's lawyer would be priceless. HIPAA concerns, the logistics of obtaining patient and provider consent, creating an atmosphere of patient/provider mistrust, and physical interference with surgical procedures themselves have also been offered as additional reasons for keeping recording devices out of operating rooms. Attorney Ellen Epstein Cohen also noted that ownership and access of the video footage after the fact could be an issue. While medical records and diagnostic films are created by hospitals and health care providers, patients have a legal right of access to those records, in addition to HIPAA privacy rights. Would video footage of surgical procedures be treated similarly?

Conclusion

Undoubtedly, video footage of surgery that resulted in patient injury would be valuable and relevant evidence in a subsequent medical malpractice suit. And while this fact might make the installation of operating room cameras seem like a dangerous liability proposition for health care providers and their insurers, it could be argued that operating room cameras have the potential to do as much to prevent medical liability as they do to create it. Surgical video footage would be an unparalleled resource for examining and identifying the causes of surgical errors to help prevent future such errors from occurring. Fewer errors mean fewer medical malpractice claims.

Additionally, with recording apparatus in the operating room, it is reasonable to expect that surgeons and other medical staff would tend to be more careful and thoughtful than ever, knowing that they are under constant video surveillance, thus perhaps further reducing the potential for surgical errors.

There is also data to suggest that when a doctor takes responsibility for a poor patient outcome, or apologizes to the patient or patient's family, this tends to expedite the resolution of medical malpractice claims. Video footage that provides clear answers to what happened during a surgery, and why, might provide a similar benefit. With it, people like Raina Ferraro's parents would not have to wait two weeks for a hospital to talk with them, only to learn then that the hospital has no answers.

For it or against it, the idea of recording surgery is probably not going away. Even if the pending Wisconsin bill does not become law, it is likely that lawmakers in other states will propose similar legislation. Although, they may not have to. The University of Toronto researchers who developed the surgical black box have reported that several U.S. hospitals have expressed interest in their device. It may not take government intervention to get cameras in operating rooms; hospitals may do it on their own, having determined that the benefits of recording surgery ' from an injury prevention and error correction view ' outweigh the liability risks.

With thousands of surgical errors occurring every year, and billions of dollars being paid out on surgical malpractice claims, providing a new and better tool for determining the cause of poor surgical outcomes and preventing future surgical errors certainly seems like a positive development.

Michael C. Ksiazek is an attorney with Stark & Stark, in its Yardley, PA, office, and is a member of its Accident & Personal Injury Department. He concentrates his practice on catastrophic personal injury and medical malpractice cases. Stark & Stark is a full-service law firm with offices in New Jersey, Pennsylvania and New York. Mr. Ksiazek can be reached at [email protected].

Surgical errors occur fairly frequently and often give rise to medical malpractice claims. In the past, a patient who believed he had been injured during surgery generally was at a distinct disadvantage due to the fact that he was sedated or otherwise did not actually witness the procedure. Recently, though, the topic of audiovisual recording of surgical procedures is coming up in the national conversation. What might the consequences of this newer trend be?

The Incidence of Surgical Errors

According to data collected annually by medical professional liability insurance carrier and consulting company Diedrich Healthcare, 24% of the nation's 2014 medical malpractice payouts were related to surgical procedures. That number is comparable to 2013's 23% and 2014's 24%.

The results of a study published in the journal Surgery (Rogers, Selwyn O., M.D., M.P.H., et al., “Analysis of Surgical Errors in Closed Malpractice Claims at 4 Liability Insurers,” Surgery, Vol. 140, Issue 1, Pages 25-33 (July 2006)), which examined 444 closed surgical malpractice claims from four different medical liability insurers, revealed that 58% of surgical errors resulted in patient injury. Of those cases, 23% led to patient death. The study's authors concluded that systems factors, including lack of technical skill by the surgeon and communication breakdown among providers, contributed to error in 82% of the cases.

In a similar study published in the Journal of the American College of Surgeons (Greenberg, Caprice C., M.D., M.P.H., et al., “Patterns of Communication Breakdowns Resulting in Injury to Surgical Patients, J Am Coll Surg, Vol. 204, Issue 4, Pages 533-540 (April 2007)), the authors found that serious communication breakdowns during surgery ' typically between surgical attending physicians and other providers ' often resulted in harm to patients.

Based on the results of a comprehensive national medical malpractice analysis conducted by researchers at Johns Hopkins Medicine in 2012, roughly 4,044 surgical errors occur in the United States each year, and roughly 80,000 surgical errors occurred at U.S. hospitals between 1990 and 2010. Looking at information from the National Practitioner Data Bank, the researchers determined that, during that 20-year span, approximately $1.3 billion was paid out on surgical medical malpractice claims. The researchers estimate that surgeons leaves foreign objects inside a patient's body after an operation 39 times a week; perform the wrong procedure on patients 20 times a week; and operate on the wrong body part or body site 20 times a week. The researchers suggest that these estimates may actually be on the low side.

Proposed Legislation

In Wisconsin, Rep. Christine Sinicki (D-Milwaukee), has introduced legislation that would permit patients to have their surgeries audio-visually recorded. According to an article from the Milwaukee-Wisconsin Journal Sentinel, if passed, the bill would require health care facilities to give surgical patients the option of having their surgery videotaped. It would also allow patients to execute advance directives indicating that they wished to have all of their surgeries recorded. The law would be named for Julie Ayer Ribenzer, a 38-year-old woman who died after receiving too much of the anesthetic propofol during a breast implant surgery.

The Wisconsin bill is similar to one recently proposed in New York. It was inspired by 19-year-old Raina Ferraro, a college freshman from Rockland County, NY, who was admitted to Phelps Memorial Hospital Center for a routine endoscopy. According to a medical malpractice lawsuit filed by her parents, Raina went into cardiac and respiratory arrest due to negligent anesthesia administration during the endoscopy, resulting in severe brain damage and a persistent vegetative state. Raina's parents stated publicly that it took the hospital two weeks to discuss the matter with them and, when they did, the hospital was unable to explain what went wrong during Raina's procedure. This prompted her parents to urge New York lawmakers to create legislation that would require cameras in all operating rooms. The purpose of the legislation, dubbed “Raina's Law,” would be to document proof of medical malpractice and ensure that families would be able to understand why a patient had a poor surgical outcome.

The trend toward allowing recording of surgeries is not limited to the United States. For example, a group of lawmakers in South Korea has submitted a bill to that country's National Assembly that would require all hospitals to include cameras in operating rooms, in an effort to prevent medical malpractice. According to an article published in Korea Times , the proposed legislation follows several instances of extreme medical misconduct, including one where medical staff allegedly held a birthday party in an operating room while an unconscious patient lay on the table. Under the terms of the bill, patients would have to consent to the recording of their procedures.

Another Option

In the context of airplanes and motor vehicles, a “black box” is a device that records data at the time of an accident or crash ' things like speed, acceleration and deceleration, whether brakes were applied, whether seat belts were in use, altitude and airspeed. By retrieving and analyzing the data recorded on these black boxes, investigators are better able to determine how or why a crash or accident occurred.

Now, researchers at the University of Toronto and St. Michael's Hospital have developed a surgical “black box” to track a surgeon's actions during surgery, record any errors and, subsequently, help show why a patient had a poor outcome. In addition to its use as a tool to help families and patients understand the reasons for poor outcomes, collecting this data would allow researchers to analyze why surgical errors occur, perhaps allowing them to prevent future such mistakes during surgery. According to the researchers, the device is still in its initial phase, having been used in only about 40 surgeries, all of them laparoscopic weight-loss procedures. However the researchers also report that a number of hospitals, including several in the United States, have expressed interest in the device.

Quality of Care Aids

The development of surgical black boxes, and the above-mentioned proposed laws that would allow audiovisual recording of surgeries, certainly may reflect a growing public concern that surgical errors are not being disclosed, and that doctors and hospitals are not taking responsibility when errors occur. However, the push for them may also be explained by the fact that sometimes it simply is not be clear to patients or medical providers why a patient had a poor surgical outcome.

Currently, the best (and, generally, only) method for determining the causes of operating room adverse events is post-surgical review and analysis. Traditional patient surgical safety research focuses on recreating adverse events, through root-cause analyses, self reporting policies and review of medical malpractice claims. The two studies mentioned at the beginning of this writing both recommended the review of closed medical malpractice claims to aid in identifying errors for improvement to reduce future surgical mistakes. In that vein, it would seem that allowing audiovisual recording in operating rooms would provide additional data to help medical providers understand why errors occur and to prevent future such mistakes.

The idea is not all that new. At a patient safety conference held at Harvard University in 2009, Caprice Greenberg, M.D., M.P.H., a surgeon at Dana Farber Cancer Institute and Brigham & Women's Hospital in Boston, advocated for the use of video during surgery in order to further the study of both performance and safety in the operating room. She noted that video is commonly used on other fields to capture performance for critical analysis.

Medical Malpractice Evidence

Despite their obvious advantages in helping to uncover the causes of bad surgical outcomes, videotaping of surgical procedures and surgical black boxes are not ideas that are universally embraced. For example, the Wisconsin Hospital Association and the Wisconsin Medical Society have both stated that they would oppose Rep. Sinicki's bill. And some doctors have gone on record in opposition to bringing black boxes or cameras into operating rooms.

The chief concern, as to be expected, is that the recordings and data could later be used as evidence in a medical malpractice suit. At the 2009 Harvard patient safety conference mentioned previously, medical malpractice defense attorney Ellen Epstein Cohen pointed out that, as a picture is worth a thousand words, a videotape of a surgery to a plaintiff's lawyer would be priceless. HIPAA concerns, the logistics of obtaining patient and provider consent, creating an atmosphere of patient/provider mistrust, and physical interference with surgical procedures themselves have also been offered as additional reasons for keeping recording devices out of operating rooms. Attorney Ellen Epstein Cohen also noted that ownership and access of the video footage after the fact could be an issue. While medical records and diagnostic films are created by hospitals and health care providers, patients have a legal right of access to those records, in addition to HIPAA privacy rights. Would video footage of surgical procedures be treated similarly?

Conclusion

Undoubtedly, video footage of surgery that resulted in patient injury would be valuable and relevant evidence in a subsequent medical malpractice suit. And while this fact might make the installation of operating room cameras seem like a dangerous liability proposition for health care providers and their insurers, it could be argued that operating room cameras have the potential to do as much to prevent medical liability as they do to create it. Surgical video footage would be an unparalleled resource for examining and identifying the causes of surgical errors to help prevent future such errors from occurring. Fewer errors mean fewer medical malpractice claims.

Additionally, with recording apparatus in the operating room, it is reasonable to expect that surgeons and other medical staff would tend to be more careful and thoughtful than ever, knowing that they are under constant video surveillance, thus perhaps further reducing the potential for surgical errors.

There is also data to suggest that when a doctor takes responsibility for a poor patient outcome, or apologizes to the patient or patient's family, this tends to expedite the resolution of medical malpractice claims. Video footage that provides clear answers to what happened during a surgery, and why, might provide a similar benefit. With it, people like Raina Ferraro's parents would not have to wait two weeks for a hospital to talk with them, only to learn then that the hospital has no answers.

For it or against it, the idea of recording surgery is probably not going away. Even if the pending Wisconsin bill does not become law, it is likely that lawmakers in other states will propose similar legislation. Although, they may not have to. The University of Toronto researchers who developed the surgical black box have reported that several U.S. hospitals have expressed interest in their device. It may not take government intervention to get cameras in operating rooms; hospitals may do it on their own, having determined that the benefits of recording surgery ' from an injury prevention and error correction view ' outweigh the liability risks.

With thousands of surgical errors occurring every year, and billions of dollars being paid out on surgical malpractice claims, providing a new and better tool for determining the cause of poor surgical outcomes and preventing future surgical errors certainly seems like a positive development.

Michael C. Ksiazek is an attorney with Stark & Stark, in its Yardley, PA, office, and is a member of its Accident & Personal Injury Department. He concentrates his practice on catastrophic personal injury and medical malpractice cases. Stark & Stark is a full-service law firm with offices in New Jersey, Pennsylvania and New York. Mr. Ksiazek can be reached at [email protected].