By Paul Levy

During these couple of weeks following our wrong-side surgery, a number of people
have asked me if we intend to punish the surgeon in charge of the case, as well as other people in the operating room, who did not carry out the expected time-out procedure.

My initial and immediate reaction has always been, "No, these people have been punished enough by the searing experience of the event. They were devastated by their error and distraught to think that they could have participated in an event that unnecessarily hurt a patient. The surgeon immediately reported the error to his Chief and to me and took all appropriate actions to disclose and apologize to the patient, as well as participate openly and honestly in the case review."

This reaction was supported by one of our trustees, who likewise responded, "God has already taken care of the punishment." But another trustee said that it just didn’t feel right that this highly trained physician, "who should have known better," would not be punished. "Wouldn’t someone in another field be disciplined for an equivalent error?" this trustee asked.

This is a healthy debate for us to have, but a comment yesterday made
me realize that I was over-emphasizing the wrong point (i.e., the
doctor’s sense of regret) and not clearly enunciating the full reason
for my conclusion. The head of our faculty practice put it better than
I had: "If our goal is to reduce the likelihood of this kind of error
in the future, the probability of doing that is much greater if these
staff members are not punished than if they are."

I think he is exactly
right, and I believe this is the heart of the logic shared by our
chiefs of service during their review of the case. Punishment in this
situation is more likely to contribute to a culture of people hiding
their errors rather than admitting them. And it is only by having a
culture in which people freely disclose errors that the hospital as a
whole can focus on the human and systemic determinants of those errors.
I believe this conclusion is supported by most of the advanced thinkers
in this field, but I ask them and others of you to comment on that
theory of the case.

But, then we are left with a follow-on question: Under what
circumstances does the need to punish someone trump the other concerns
about institutional learning and a no-blame environment? Beyond the
obvious case in which a doctor or nurse intentionally harms a patient
— where no one would doubt the application of punishment — I am
afraid that the answer is, "It depends."

We had a circumstance a couple of years ago in which a doctor
intentionally left the OR to consult on another patient while his first
patient was in mid-surgery. His logic was that there was a natural
break in the procedure during which a tourniquet had to be released for
a period of time to permit a limb to reprofuse, and that there was no
risk to the patient by his absence. However, he left no attending
physician in the room, only residents — a clear violation of the
rules. No harm whatsoever befell the patient, who in fact was
ultimately very grateful to this surgeon for completing a very
complicated procedure.

Upon review of this case, our Medical Executive Committee felt that the
violation of an important rule was so clear that the surgeon should be
penalized, and he was suspended for a period of time and the case was
reported to the state licensing board.

A friend today asked me what would distinguish a case like that from
the recent one in which our surgeon failed to conduct a time-out before
beginning the operation. Honestly, it may have been the fact that a
case had recently occurred at another hospital in town, where a surgeon
left the OR and did put a patient more at risk, and where the publicity
concerning that event was widespread. In short, everyone’s sensitivity
had been raised. But I think the MEC response had more to do with their
conclusion that the surgeon knowingly and intentionally left the room
unsupervised, feeling that the rule didn’t really need to apply to him
in that case.

Is that distinguishable from failing to conduct a time-out before a
surgical case? I guess intent should matter. In the more recent case,
the surgeon clearly did not intend to skip the time-out. His mind was
on other things, and he did it inadvertently. While that is, in great
measure, his fault, it also suggests to us hospital leaders that there
is a flaw in the training we provide or the procedures we implement. In
other words, we participated in this error by not having the wisdom to
design a sufficiently fail-safe system that would protect the surgeon
(and of course, the patient) from inadvertently missing the time-out.

Please understand that I am not saying this to absolve the surgeon from
his responsibility. I am saying that to reiterate the point I make
above: We should err on the side of encouraging disclosure and honesty
about errors so we can properly do our job to re-design systems of care
to reduce the chance of error.

While knowing this may appear to contradict what I just said,
there might be cases in the future that are remarkably similar to the
one we just had where we as a management team decide that a punishment
should be meted out. It is not clear to me that we can have exact
rules, in advance, that would draw the distinction. I think this is one
area were we must maintain the right to exercise our discretion
depending on the particular circumstances of the case.