By Anthony M. Sola, Esq. and Daniel L. Freidlin, Esq.
Monday, May 20, 2019
Category: Legal
An operative report documents the details of surgery. The Joint Commission on Accreditation of Healthcare Organizations directs that it be dictated immediately after surgery so there is sufficient information in the medical record prior to the patient’s transfer to the next level of care.
This informs subsequent healthcare providers caring for the patient of the surgeon and assistants, procedure performed, operative findings, complications, estimated blood loss, specimens removed and postoperative diagnosis. But this is not its only purpose.
In the medicolegal context, the operative report serves to document the steps that were and were not taken to complete the surgery without unintended injury. As lawsuits and trials occur years after surgery when memories have faded, a well written operative report detailing the steps taken to avoid surgical complication is crucial to the successful defense, as it allows the defendant to reconstruct a surgery performed years earlier. It is very important that the operative report describes the steps taken in chronological order.
Case Example
Recently, we successfully defended a gynecological surgeon at a trial involving injury to the ureter during robotic hysterectomy. Although the plaintiff acknowledged that injury to surrounding structures was a known and accepted complication, the claim was that the injury should have been identified intraoperatively so that a urologist could have stented the ureter without the need for a subsequent repair surgery. While we demonstrated to the jury that this was a thermal injury that could not be identified intraoperatively, there were omissions in the operative report that exposed our client to aggressive cross-examination.
The very detailed operative report at issue documented identification of the ureters at various points during the surgery, but not at the conclusion of cutting and cauterization of the nearby uterine arteries. As an operative report should discuss the steps of the surgery chronologically, the subsequent use of electrocautery near the uterine artery in this case without documentation that the pertinent structures were inspected at the conclusion of surgery was a weakness to the defense. The plaintiff’s attorney aggressively cross-examined our client about the alleged failure to identify and inspect the ureters for injury at the conclusion of surgery.
Conclusion
A critical step of any surgical procedure is confirmation of hemostasis and lack of injury to surrounding structures prior to conclusion of surgery. This is a step that is (or should be) universally performed but is not always documented. The rationale for not including this step at the conclusion of the report is often that it universally performed, and thus there is no need to document it. While it may be true this step is always done, a plaintiff’s attorney uses the omission to support his argument that there was a failure to ensure hemostasis and/or lack of injury prior to concluding the operation. The plaintiff’s lawyer can point to many steps in any operative report that are “universally performed” but nevertheless are documented as having been done. The plaintiff’s lawyer will argue that there were two opportunities to include this step in the report, first at the time of dictation and then during review prior to signing the report. Thus, it is argued that the lack of documentation must mean this key step wasn’t performed. And to lay jurors, this argument can be convincing.
What is written in the report is as important as what is not written. The successful defense of the intraoperative complication case often depends on documentation that the surgical field was inspected prior to completing the surgery. Including a “catch all” statement at the end of the operative report that the surgical field and surrounding structures were inspected for hemostasis and patency is an effective way to accomplish this and may even dissuade a prospective plaintiff’s attorney from bringing a case in the first place.
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