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Documenting Surgical Procedures

Once a patient is closed, it is impossible to determine what the surgeon did during the operation. Juries are very skeptical about surgeons' recollections. Major malpractice cases have turned on points as simple as whether a surgeon checked the integrity of a screw on an orthopedic appliance.[232] In that case, which involved osteomyelitis associated with a fixture plate on a compound fracture, the argument for leaving the plate in place was weakened because there was evidence when the plate was eventually removed that the screws were loose and providing no support to the fracture.

On exploratory surgery to determine the status of the plate, the surgeon recorded that several screws were loose but did not record the status of the other screws holding the plate. The plate was left in place, and the osteomyelitis spread. At trial there was evidence that the size and position of the surgical incision precluded checking the status of the unmentioned screws. While the surgeon recalled that the screws had been checked and found solid, it was difficult to convince the jury that all the screws were checked but that only the loose ones had been recorded. Had the procedure been carefully documented (assuming that the screws had been checked), the case would have been much easier to defend.

The traditional surgical note, dictated after the operation, can be effective documentation for short or routine operations. (Preprinted or word-processed standard operative notes are never credible in legal proceedings and should not be allowed in hospital charts.) Postsurgical recollections become questionable for long, complex procedures and those with unexpected findings. These procedures should be documented while in progress by dictation to a nurse, by a tape recorder that is activated on demand, or by videotape. Unlike a tape for a teaching film, a video surgical note need not be of high quality, nor need it follow the surgeon's hands in close-up. It serves as the visual context for the surgeon's description of the operation, not an independent visual audit of the procedures. Supplemented with a dictated chart note, these provide an inexpensive record of risky operations.

[232]Burkhardt v. Houston Orthopedic Associates. 795 SW2d 221, (Tex App--Hous [14 Dist.], 1990).

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