Bad Outcome In The OR: What To Do Next and Not Do

Medical Malpractice What to do

Practice in healthcare long and enough and something bad will eventually happen. Whether or not it ends up a medical malpractice lawsuit down the line doesn’t matter. There are certain steps you need to take right away to protect yourself.

We asked the founder of Thrive, Dr. Stacia Dearmin, what you should do when you find yourself dealing with a bad outcome in the OR.

Where to Begin

It starts with notifying the correct people. So who are they?

In a hospital environment there’s going to be a risk manager or a department of risk management that should be made aware from the very beginning. You also need to reach out to your medical malpractice insurance carrier. In many instances, your medical malpractice insurance policy contains a clause that stipulates that as soon as you are aware of something which “may result” in a claim whether or not it ever does, you must make them aware in order for your insurance to properly cover you. 

So just go ahead and make them aware. And I know it feels sort of scary to do that or feels embarrassing. But rest assured this is what these claims managers do all day long. Speaking to them they tell me there are many more potential claims reported than actual claims resulting in a lawsuit.

When you report to them, you give them the power to start setting things up for the best advantage of your defense down the road. This is true both with your risk manager and your medical malpractice insurer. Don’t let not let fear drive you not to report it.

The Anesthesia Medical Record 

Now I know that’s easier said than done, do not let fear drive your decision making. But where it most often comes into play is in terms of the medical record.

Ideally we’re maintaining our medical record more or less in real time. After an adverse event occurs is not a moment to go back and alter the record as it existed before the event occurred. And that can be hard because frequently, everything’s average and normal until something goes sideways. So the record is average and normal until this point. 

We haven’t documented every possible rare thing that could ever happen. We’ve documented what we normally document, and then things go wrong. Now we wish that we had put 100 other things in that record, but it’s not the time to do that and add them before the time of the event occurred. The EMR audit trail will capture these new entries.

That will make you appear to be a person without integrity. And that is the hardest and almost most impossible thing for a good defense lawyer to defend: a doctor or an advanced practice provider who appears not to have integrity.

A record kept with integrity that can be defended. I know of instances where pages of the record were missing. And still, that record was defensible. So you want to keep the record super honest. 

How to Document After The Event

After you’ve done everything you can for the patient and the case is over, then you’re going to document what happened to the best of your ability. Acknowledge that you’re documenting after the fact at this point and just be truthfully

Let’s say the bad event happens at 1400. And literally from 1400 to 1600 you are physically engrossed in patient care. You are nonstop and finally you hand them off in the ICU. It’s now 1630 and you have documented nothing for the last two and a half hours.

Last time you documented was 1000 to 1400. You’re going to sit down and write a note in the EMR. And the first thing I would do is insert a timestamp. It is now 1645. I’m going to document that at 1400 the following event occurred whereupon we did the following. And you just tell the story. At roughly 1500, I spoke to the intensivist. At 1545 we did X, Y and Z. Lay it all out so that it’s very clear to anyone looking at it that the note is a recollection of what happened.

I Know It’s Hard, But Avoid Doing This

Are you familiar with the EMR Audit trail? The audit trail captures everything that occurs to a patient’s record. Who opens the chart, every click, every entry and every deletion. An audit trail report is hundreds to thousands of pages long. And it’s subpoenaed in almost every medical malpractice lawsuit case.

After an adverse event it’s a normal response to want to go back and look at the record after we are no longer clinically responsible for the patient. Sometimes repeatedly, because we have questions about how they’re doing afterwards. And we might even feel a little obsessed looking back at, did I really do everything I could have? Did I miss something? Let me review those vital signs immediately prior to when I stepped into care for the patient. 

We have all those questions. And sometimes, we continue to have those questions even a month or two after the fact. I would encourage physicians and advanced practice providers to try to minimize their entries into the electronic medical record after the patient is no longer in their hands. The audit trail is captured every time you log on and off.

If you have questions about how the patient is doing, there are safer ways to find out. If you feel you can do this, ask other team members who have taken over care, “How is she doing?” Sometimes a risk manager can be helpful in that regard also, “Can you give me an update on how the patient’s doing?” 

It’s all about minimizing your entries into the record. Later down the road in the event a lawsuit is filed you don’t want the audit trailing report making you look guilty.

Dr. Stacia Dearmin is a physician, nationally recognized speaker, and certified professional coach. As founder and CEO of Thrive, she aims to ensure that no physician has to travel the hard road of an unforeseen patient outcome or malpractice litigation alone! Contact with her here at Connect with Dr. Dearmin.

Disclaimer: This article is for educational purposes only. Nothing in this presentation constitutes legal advice.