Archive for the ‘Medical records’ Category

How Physical Therapists Chart – Based on a chapter by Gwen Simons PT, JD, OCS, FAAOMPT

Wednesday, March 10th, 2010

physical therapist The physical therapist is required by law to perform a physical therapy examination (sometimes referred to as an evaluation) on each patient on the first visit.   The examination is divided into three steps:

  1. Taking the patient’s history
  2. Performing a systems review where the physical therapist screens the cardiovascular/pulmonary, integumentary, musculoskeletal, and neuromuscular systems and the communication ability, affect, cognition, language, and learning style of the patient.
  3. Performing tests and measures that are “used to rule in or rule out causes of impairment and functional limitations; to establish a diagnosis, prognosis, and plan of care; and to select interventions” within the physical therapist’s scope of practice.

Historically the physical therapist’s documentation was done in the traditional “SOAP” format. In that documentation style, the patient’s subjective reports are under the “S” (for “Subjective”) part of the note. The systems review and the tests and measures are under the “O” (for “Objective”) part of the note.

After the physical therapist does the examination, she will evaluate the results to come up with the physical therapy diagnosis, prognosis, and plan of care (which includes the physical therapist’s interventions or referral recommendations). The Guide refers to this process as the physical therapist’s Evaluation. In the SOAP note format, the physical therapy diagnosis and prognosis would be documented under the “A” (for “Assessment”) part of the note. The plan of care for the patient would be documented under the “P” (for “Plan”) part of the note.

Subsequent physical therapy treatment notes

Medicare and other payer rules have driven the need for documentation to be done in different formats in different settings. Frequently the physical therapy documentation merely reflects what interventions were delivered in a daily “treatment record” or “encounter note.” These notes primarily record what treatment was delivered for payment purposes but do not always record the patient’s subjective complaints or progress. However, under most state laws and Medicare rules, the physical therapist is required to document a “progress note” or “re-evaluation” at least every 30 days (or less under some state laws) if the daily treatment notes do not record objective measurements and progress.

The progress note/re-evaluation contains tests and measures and an evaluation of the patient’s progress toward the treatment goals since the initial examination or last re-evaluation.  This is the best place to start the search for medical evidence in the physical therapy record if the daily notes are devoid of objective measurements or evidence. Daily notes should not be overlooked, however. If the patient’s condition changes, a new injury occurs, or there is a negative response to treatment, the physical therapist should document it on the day it was discovered rather than saving it for the monthly progress report.

Evidence in the Physical Therapy Record

Regardless of the format used for documentation, all physical therapy documentation has one thing in common: it quantifies the patient’s function. The focus of physical therapy interventions and treatment goals is on maximizing the patient’s function and moving the patient toward independence. While the reduction or elimination of pain may also be a goal, safe function despite pain is paramount. Therefore, the physical therapy record is frequently a good source of evidence of whether the patient’s subjective reports of pain are truly disabling. The medical legal reviewer should look for statements in the assessment (or evaluation) that say “pain is out of proportion to objective findings” or “signs and symptoms are not consistent with subjective complaints.”

Since independence is always a goal, the physical therapist has an expectation of compliance and effort. When the patient is not compliant or shows signs of giving a sub-maximal effort, the physical therapist is likely to document it. The physical therapist may also use words such as “self-limiting,” “pain-focused,” or “sub-maximal effort” to indicate that the patient’s subjective perception of the pain may not be reliable or credible. This does not mean the physical therapist thinks the patient is exaggerating or “faking” the injury but is an indication that the physical therapist has not observed enough objective signs to support the patient’s limitations or reports of pain.

The physical therapist may also document comments the patient makes that indicate the patient’s motivation for limiting activities, such as “my attorney told me I should not go on my hiking trip” or “my attorney told me I should continue to wear my neck brace, so I put it back on.” This is not the evidence the attorney wants to see in the record if she is representing the patient. These entries in the record are particularly damaging when the objective findings indicate that the patient is capable of safely doing more, or the attorney’s advice contradicts the medical provider’s advice. On the other hand, where the patient’s subjective complaints are consistent with the medical/physical findings, the physical therapist’s documentation can help give credibility to the patient’s reported disabilities.

Source: Gwen Simons, PT, JD, OCS, FAAOMPT, “Physical Therapy Records”, Iyer and Levin (Editors) Medical Legal Aspects of Medical Records, Second Edition, 2010. Contact us for purchasing information.

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Obtaining Diagnostic Imaging for a Potential Medical Malpractice Claim based on a chapter by Peter Berge JD, MPA, PA

Wednesday, December 30th, 2009
films are crucial in failure to diagnose cases

Films are crucial in failure to diagnose cases

The liability of a failure to diagnose or delay in diagnosis case often rests on the information revealed by a diagnostic test. Both defense and plaintiff attorneys and their experts will be interested in what the test showed. Computerized axial tomography (CT) scans and magnetic resonance imaging (MRI) are usually stored in digital form. Obtaining those scans on a CD-ROM disk provides significant flexibility, especially when more than one expert will be reviewing the images. Plain radiographs (x-ray films) are becoming more commonly available in digital form. Where diagnostic images can be obtained on disk, they should be. It is more efficient to copy and mail a CD-ROM than to package and send large and ungainly packages of films, much less to send those films from one expert to another. Such files are usually provided with an integrated viewing program, such as those based on the Digital Imaging and Communications in Medicine (DICOM [TM]) standard. If not, a number of viewers are available as “freeware” for download from the internet.

Mammograms are most often available only on film, and copies are usually not suitable for expert review due to degradation in image quality. Original mammogram films should be obtained early in the evaluation and handled carefully, as they are often key to claims of delayed diagnosis of breast cancer.

Obtaining diagnostic fetal ultrasound images may present a challenge. Copies are not likely to be of suitable quality for expert review, and providers will sometimes vigorously resist attempts to obtain the original paper images, including opposing motions for pretrial discovery to require their production. It is sometimes possible to obtain digital copies of the original images. Although this can be costly, it is probably less so than engaging in extended motion practice, or paying an expert to go to the potential defendant’s facility to examine the original documents. Cases have been won and lost on the quality and interpretation of diagnostic tests. Be sure to make every effort to safeguard original films. Experts must be instructed on methods of returning films to the appropriate location. Sadly, cases have been won and lost on misplaced films.

Modified from Peter Berge, JD, MPA, PA “Attorney Use of Medical Records in a Medical Malpractice Case”, from Patricia Iyer and Barbara Levin, Medical Legal Aspects of Medical Records, Second Edition, March 2010. Contact us for ordering information.

Read more about Med League’s services in medical record analysis.

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Illegible Medical Records based on a chapter by Peter Berge JD, MPA, PA

Wednesday, December 23rd, 2009
Waht is the name of the drug?

What is the name of the drug?

In 2009, people’s lives still hinge upon correct interpretation of handwritten records. Some handwritten records are virtually, or actually, illegible. The prescription above was written for Femara. Premarin was dispensed and harmed the patient who received it.

Plaintiff’s and defense attorneys and other reviewers should be familiar with state laws or regulations that permit the patient (or her representative) to require the healthcare provider to provide a timely transcription of notes. Defense attorneys are not likely to require transcriptions as they are representing the provider, who (if required) would voluntarily produce them. This can be very helpful in expediting the evaluation of otherwise opaque records in the setting of pretrial investigation. If transcriptions were not obtained during the investigative phase, they should be demanded after suit is filed if there is any doubt as to the interpretation of notations.

Regardless of when transcriptions were created, it is important for plaintiff’s counsel during depositions to verify the accuracy of the transcription. It is surprisingly common to find errors in transcription, especially when it turns out that opposing counsel provided the document without verifying the content with the witness.

Defense counsel will often have the advantage of direct access to defendants for assistance in deciphering medical records, except when dealing with the records of individuals with separate counsel. When in doubt, it is prudent to have the client interpret any handwritten notations of questionable legibility. There will be times, however, when the healthcare provider has no more idea of what the note says than the attorney does. While computerized records have some flaws, they eliminate guessing with people’s lives.

Modified from Peter Berge, JD, MPA,  PA. “Attorney Use of Medical Records in a Medical Malpractice Case”, from Patricia Iyer and Barbara Levin, Medical Legal Aspects of Medical Records, Second Edition, 2010.

Contact us for ordering information.

Read more about Med League’s services in medical record analysis.

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Specifying the Format of the Medical Records based on a chapter by Peter Berge JD, MPA, PA

Wednesday, December 16th, 2009
Medical records on CD- a mixed blessing

Medical records on CD- a mixed blessing

Records are obtained by plaintiff’s counsel prior to filing a medical malpractice suit. Ordering an extract of the medical record (typically containing information such as the admitting history and physical examination, discharge summary and laboratory results) is rarely appropriate in medical malpractice cases. Normally, complete records should be requested.

I was recently asked by a client why I prefer to read paper records over records that have been scanned. The attorney’s perception was that he would save money if he supplied a disk with medical records. He did save money- on the shipping costs. The decision of whether or not to request records in digital format, such as scanned records on CD-ROM (if available), is based in part on the degree of sophistication of the records. Typically, medical records are simply optically scanned and stored in a portable document format (PDF) image file. As such, the reviewer cannot search for text, and must page through each screen to find the desired parts of the chart. If the file is large, and is not numbered and indexed as to content and location, it can be cumbersome to work with and review. Some reviewers find it easier to print out and work with a paper copy, which allows flagging and annotation; this results in a standard paper record. This is particularly true when records are voluminous. Everyone’s definition of voluminous may be slightly different, but to me, voluminous records fill a copy paper box.

Of course, charts scanned on disk require very little storage space (until they are printed), are easily reproduced by copying the disk, and may provide individual files that can be sent by e-mail or transported using a memory stick.

If the scanned records happen to be indexed, allowing the reviewer to jump from section to section (e.g., progress notes to laboratory results, medication records to operative reports), then the digital format is extremely convenient for review. But scanning a batch of unorganized records is often a waste of time. Remember, it is more economical to present the reviewer, whether that person is an expert, a consultant, or an attorney, with information that is organized in a logical way.

Modified from Peter Berge, JD, MPA, PA. “Attorney Use of Medical Records in a Medical Malpractice Case”, from Patricia Iyer and Barbara Levin, Medical Legal Aspects of Medical Records, Second Edition, 2010. Contact us for ordering information.

Read more about Med League’s services in medical record analysis.

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Reviewing Medical Records in a Potential Medical Malpractice Claim by Peter Berge Esq.

Wednesday, December 2nd, 2009

Analysis of medical records should be done by a knowledgeable person

Analysis of medical records should be done by a knowledgeable person

Once medical records are in hand, someone has to review them. Who should review them, and in what sequence, depends on numerous factors. In the case of a plaintiff’s attorney, if the attorney has a solid knowledge of the medical issues involved in the case, and particularly when the records are not voluminous, it may make sense for the attorney to initially assess the records. If the attorney has managed several similar claims and is well-versed in the subject matter, the initial evaluation may be all that is needed to determine whether to send the records directly to a testifying expert. Defense counsel or risk management personnel presented with a claim would be well-served by familiarizing themselves with the records prior to sending them out to an expert or consultant.

Even when an attorney has in-depth knowledge of the medical and legal issues involved in a claim, the volume of the records in relation to the attorney’s work load may dictate that a legal nurse consultant (LNC) conduct an initial review, organize the records, create a time line and summarize the issues. Likewise, if the attorney is not very knowledgeable about the medicine involved, it is helpful to have an LNC review the material, perform any medical research needed, and provide a report and recommendation to the attorney. Aside from saving the attorney numerous hours in review and research, this approach has the benefit of readying the records for review by a medical expert. With the records already organized and summarized, the expert or experts may be able to review the material more efficiently, providing some savings to the attorney and client.

Modified from Peter Berge, “Attorney Use of Medical Records in a Medical Malpractice Case”, from Patricia Iyer and Barbara Levin, Medical Legal Aspects of Medical Records, Second Edition, in press.

The Second Edition of this text will be released in March 2010. Want to save money by buying at the prepublication price? Send an email to ML@medleague.com and in the subject line type “Notify me Medical Records 2 E.”

Read more about Med League’s services in medical record analysis.

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Which Medical Records are Crucial to Evaluate a Medical Malpractice Claim? by Peter Berge Esq.

Monday, November 30th, 2009

Which medical records do you need to screen a case?

Which medical records do you need to screen a case?

Several factors should be considered by a plaintiff’s attorney when deciding which records to request while evaluating a potential medical malpractice claim. They include the likelihood that the attorney will pursue the case, the volume (and potential cost) of the records and the available resources (whether those of the attorney or the client) to pay the cost, and the nature of the information that will be required to establish the viability of the case. Be aware of any state-specific laws that regulate what the provider may charge to supply a copy of the chart.

When a specific deviation or a particular type of deviation is alleged or suspected, the reviewer must be familiar with the materials that will be needed to thoroughly assess the claim. If a failure to screen for colon cancer is alleged, for instance, the chart of the primary care physician may be sufficient to reveal the deviation and—if it contains reports from the surgeon and oncologist—to assess causation and injury as well. In cases of delayed diagnosis of breast cancer or negligence in interpretation of prenatal ultrasound studies, it is likely that original images of the diagnostic study in question (such as mammography, breast ultrasound or fetal ultrasound) will be required.

When in doubt, the reviewer should consult with the expert who will ultimately be asked to certify or otherwise assess the validity of the claim or the expected testifying expert or experts. The facts of each case will determine whether full certified copies of all records are needed, or whether abstracts may be sufficient. Full certified copies of medical records relating to where the alleged medical malpractice occurred are needed to complete an evaluation of the merits of a claim.

Another factor for plaintiff’s counsel to take into account is whether or not there is a short statute of limitations. When there remains less than six months to investigate a claim, it may be prudent to err on the side of a wider scope of record requests rather than requesting them piecemeal, except when the expected testifying expert is very clear about what would be necessary to provide a definitive opinion as to deviation and causation. A liability expert will have limited need to review voluminous medical records for care rendered after the care alleged to be negligent. A discharge summary may suffice.

A host of records may be relevant in a specific case. Depending on the circumstances of the claim the attorney should examine

• hospital, emergency room, or emergency center records where the injury was initially treated,
• emergency medical services records (ambulance or medical intensive care unit/MICU),
• hospital records that relate to treatment and surgery,
• records of physicians and specialists who examined or treated the plaintiff before and after the incident,
• outpatient imaging (x-rays, MRI scans, CT scans, and so forth),
• any outpatient labs where blood work or other tests (EMG, EKG, and so forth) were done,
• inpatient and outpatient rehabilitation records including physical therapy, occupational therapy, and so forth,
• outpatient pain treatment centers,
• the actual radiographs and reports that relate to the injury,
• the actual pathology specimens and reports that relate to the injury,
• billing records,
• visiting nurse home care records,
• mental health, substance abuse records and HIV records,
• autopsy report, and
• nursing home records.

Modified from Patricia Iyer and Jane Barone, “Obtaining and Organizing Medical Records”, and Peter Berge, “Attorney Use of Medical Records in a Medical Malpractice Case”, from Patricia Iyer and Barbara Levin, Medical Legal Aspects of Medical Records, Second Edition, in press
The Second Edition of this text will be released in March 2010. Want to save money by buying at the prepublication price? Send an email to ML@medleague.com and in the subject line type “Notify me Medical Records 2E.”

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When Do You Get Medical Records for a Potential Medical Malpractice Case? by Peter Berge Esq.

Wednesday, November 25th, 2009

Attorneys should think twice before ordering medical records

Attorneys should think twice before ordering medical records

Unless a potential client presents with medical records in hand, the plaintiff’s attorney’s office considering obtaining records needs to be aware of the investment in time, money, and space. HIPAA-compliant authorizations must be executed, requests sent (and often re-sent), and fees paid. Some healthcare providers are notoriously slow in responding to requests, which requires the law firm to expend additional resources to follow up. It is therefore inefficient to request records until the potential value of the claim has been assessed.

The point at which a plaintiff’s attorney should request medical records depends greatly on the experience and medical knowledge of the reviewer. The great majority of claims:

1. can be determined to be without merit,
2. present insurmountable difficulties in proving causation, or
3. suggest damages insufficient to justify litigation, all based on historical information provided by the potential client with no, or minimal, documentation at hand.

Therefore, a thorough assessment of the above factors should be made before considering requesting medical records.

Ideally, the client interview should reveal whether or not the allegations, if supported by records, would present an actionable claim, and the potential scope of damages. At that point, it is reasonable to request records. In fact, however, several scenarios may exist:

1. First, the initial evaluation presents facts so clear that the attorney feels confident that the case is likely to go forward.
2. Second, the information at hand sounds promising, but specific records are needed to determine the extent to which deviation or causation can be proven.
3. Finally, some cases appear to be a “long shot,” where it seems unlikely that the necessary elements will be proven, but the injury is so serious (and, proportionately, the damages so large) as to justify the investment in requesting and reviewing the records. The reviewer should keep these scenarios in mind when deciding the scope of the initial request for records.

Read more about establishing damages and claims of frivolous lawsuits.

Modified from Peter Berg′e, Esq, “Attorney Use of Medical Records in a Medical Malpractice Case”, Patricia Iyer and Barbara Levin (Editors), Medical Legal Aspects of Medical Records, Second Edition, in press.

The Second Edition of this text will be released in March 2010. Want to save money by buying at the prepublication price? Send an email to ML@medleague.com and in the subject line type “Notify me Medical Records 2E.”

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Why risk tampering with medical records? By Pat Iyer

Wednesday, November 4th, 2009

Altering medical records has huge consequences

Altering medical records has huge consequences

A physician gets a notice that he is being sued. He gives into the temptation to review his office records. He decides to change an entry to 1. More completely describe events 2. Make it look as if he did something that he did not. But it is way too late. The plaintiff attorney and her legal nurse consultant already have the record and spot the change when they receive a second set of medical records. A charge of spoliation of evidence is added to the suit.

What is the impact on the person who tampers with medical records?

1. Insurance coverage
A medical malpractice claim that includes an allegation of alteration of records may not be covered by a commercial professional or individual’s liability policy. The insurer may reserve its rights to not pay any judgment that might be entered against the provider. Institutional providers participating in self-insured trusts may have similar coverage limitations. Some states recognize a separate cause of action for alteration of medical records, whereas other states deal with it as a jury charge. If the provider admits that he or she has made the alteration, the policy may be completely voided, including coverage for the medical negligence, depending on the state law. An individual who has his or her own insurance policy may find the carrier refusing to renew the policy the following year after the insured was found to have altered records or on whose behalf a settlement was paid in a case involving alleged alterations.

2. Regulatory agencies and privileges
Some state regulatory or licensing boards may investigate the healthcare provider. Disciplinary action may follow. The healthcare system that has provided privileges to the healthcare provider may be reluctant to allow that individual to continue on the staff. Those who falsify medical records risk more than just the loss of a malpractice case. Medical boards have been known to suspend or revoke the licenses of healthcare professionals caught tampering with records. In January 2009, a physician in London lost his license to practice for a year after a disciplinary inquiry showed that he engaged in a sexual relationship with a patient, tampered with and or improperly caused inaccurate changes to be made in her records, and failed to keep accurate records. He also failed to record details of her visits, medical condition, and results of medical examinations, and failed to maintain patient confidentiality by improperly disclosing to his lover confidential information related to the care of two patients.

3. Shame and embarrassment
Loss of reputation, shame, guilt, and being exposed as a wrong doer can all have a profound impact on the individual who altered medical records. A British physician hid her error for 16 years before confessing. When she was 26-years-old and working as a junior physician, she made a medication error that resulted in the patient’s death within an hour. She changed her chart entry to make it appear she had prescribed a smaller dose of the medication than had been ordered. She was questioned by police and later gave evidence at an inquest but did not tell anyone what she had done. In 2001, she could not live with her guilt any longer and wrote a letter to the patient’s family confessing her mistake. After an investigation and a formal written warning, the General Medical Council decided to allow her to continue practicing.

4. Criminal/civil offenses
In many states, falsification of medical records is also a criminal offense punishable by fines and incarceration, see e.g., California Penal Code §471.5. The Healthcare Insurance Portability and Accountability Act was used to put a Pennsylvania nurse in prison who altered nursing home records.

Most healthcare providers who tamper with medical records have a mistaken belief that their actions cannot be detected. The guilt or fear of being found negligent swamps their good judgment.

Med League assists attorneys who suspect tampering with medical records by performing chronologies and timelines that identify discrepancies. Please note that our ethical codes prohibit us from working with people who have not yet retained an attorney.

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Michael Jackson: A Demerol Death? by Pat Iyer

Monday, June 29th, 2009
Michael Jackson- Demerol Overdose?

Michael Jackson- Demerol Overdose?

Reports state Jackson stopped breathing shortly after receiving an injection of Demerol. Attempts to resuscitate him were not successful. Was it the combination of medications or the Demerol which caused him to stop breathing? Toxicology reports are pending.

Recent reports reveal that Michael Jackson took an unusual combination of drugs:

Demerol and Vistaril twice a day- Demerol is a pain reliever, and Vistaril potentiates or accentuates the effects of Demerol.
Dilaudid 3 mg twice a day- Dilaudid is one of the strongest narcotics on the market.
Vicodin- an oral narcotic
Prozac 20 mg –antidepressant
Zoloft -antidepressant
Xanax -treats panic or anxiety disorders
Ritalin -for attention disorders
Prilosec-reduces stomach acid

It is unusual to see a patient taking two antidepressants and even more unusual and dangerous to take three narcotics. The danger lies in the accumulation of the medications in the body. Reports on the Internet also emphasize that the singer had lost weight and was skeletal-thin. The risk of overdose increases as weight loss occurs if the dosage is not also decreased.

Demerol is a narcotic pain reliever that used to be given with regularity in hospitals. (It is still acceptable to use Demerol in the recovery room for shivering.) It has fallen out of favor for a few reasons – there are more effective and safer pain relievers on the market and secondly, it is poorly tolerated by elderly people. Visual hallucinations may occur in this population. I recall my mother telling me that when she received Demerol after surgery when she was in her mid 70s. I advised her to request a different medication. She saw moving figures on the hospital room wallpaper. Days after her last Demerol shot, as she was being driven home, she saw icicles hanging in the sky. Another danger: the metabolites of Demerol can accumulate, and cause oversedation and death.

What you can do as an attorney involved in a medical or nursing malpractice case involving a potential overdose from Demerol (or another narcotic): Look at the weight and age of the patient. Ask a legal nurse consultant to do a timeline. This person will need to review the medication administration records and the narcotic sign out logs to determine how much Demerol the patient was given for pain control. Get a pharmacologist and possibly a toxicologist involved to look at the connection between the Demerol and the death.

I have lectured about the dangers of oversedation. Several years ago I was an expert witness for the plaintiff in a case that revolved around oversedation from Demerol. The case resulted in a settlement for the family of the patient. The article on Med League’s blog includes the actual facts of the overdose.

Susan Hill (fictitious name) was wheeled up to her postoperative medical surgical room at 11:30 AM. Mrs. Hill weighed 120 pounds; she was recovering from a hysterectomy. Her postoperative medications included Demerol (meperidine) 50-100 mg IM every 3-4 hours PRN (as needed), and Phenergan 12.5 mg IV every 6 hours PRN for nausea. The nurse assigned to the patient until 7 PM administered 50 mg of Demerol at 12:30 PM and 100 mg at 2 PM and 5 PM. Phenergan 12.5 mg was given IM at 12:30 PM, 2 PM and 5 PM. The nurse administered Phenergan to potentiate the action of Demerol. Read more.

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Retained Objects after Surgery by Pat Iyer

Wednesday, June 24th, 2009
Hazards of retained surgical instruments

Hazards of retained surgical instruments

The patient leaves the operating room with a sponge, a clamp, or a towel inside. What is the impact on the patient? We’ve heard the stories of the patient’s clamp that sets off the metal detector in the airport, but many patients find out about the presence of a retained object as a result of a medical change: infection (the biggest risk affecting nearly 50 percent of patients), a fistula (tunnel between two organs), perforation of an organ, or a bowel obstruction. Most commonly, the patient is readmitted to the hospital and has to undergo surgery to remove the retained object. 1.

How do instruments and sponges get left behind? The highest risk is an emergency surgery -there is a nine-fold risk. With the focus on the saving the patient’s life, counts of instruments can fall by the wayside. There is a four-fold risk when there is an unplanned change in surgery based on new findings or changes in the patient’s clinical condition. Obese patients have a higher risk of instruments or sponges being lost in the body. The risk of retained instruments is doubled when more than one surgical team performs surgery at the same time. The risk also increases when there is greater blood loss during the procedure. 2.

There are several patient safety recommendations offered by the American College of Surgeons, The Food and Drug Administration, and the Association of Operating Room Nurses. Recommendations focus on the methods of counting and reconciling discrepancies, the types of sponges used, the need to thoroughly check the wound before closing, and the documentation of counts. (Med League has provided experts on several retained sponge and instrument cases. It is our experience that surgical counts are ALWAYS recorded as correct in these cases.) The use of surgical sponges embedded with radiofrequency chips makes retained sponges easier to locate.

The Centers for Medicare and Medicaid Services took a stand on this problem by announcing it is no longer provided reimbursement for care necessitated by the retained surgical instruments.
Implications for attorneys and legal nurse consultants:

These are difficult cases to defend – retained instruments and sponges during emergency procedures are the most easily defensible cases. Analysis of damages centers around the effects on the patient from the retained instrument or sponge, which can be considerable. During discovery, obtain procedures for surgical counts. Determine if an incident report was completed. Get statements or depose healthcare providers in the operating room at the time.

Were the packages of sponges counted before the surgery to verify the number printed on the outside of the package was correct?
Did the surgeon dismiss the incorrect count without re-exploring the wound?
Did the nursing staff accept the incorrect count?
Was there any sign of breakage of devices after they were removed from the patient?
Were non-x-ray detectable sponges used?
Were counts performed in an audible manner?
When was the count performed in relation to closing the wound?
Did the radiologist versus the surgeon read the x-ray when the count was incorrect?

Have the expert witnesses carefully evaluate the circumstances in comparison to the reasonably prudent, versus the superior standard of care. For example, while radiofrequency sponges are a wonderful innovation, their use is not the standard of care as of now.

References<br>
1.    ECRI Institute, Sponge, sharp and instrument counts, Healthcare Risk Control Risk Analysis, Vol. 4, Surgery and Anesthesia, 5, November 2004
2.    Gawande, A. et al, Risk factors for retained instruments and sponges after surgery, New England Journal of Medicine, Vol. 248, No. 3, January 16, 2003, 229-235

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