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What Is Your Liability In Surgery?

What Is Your Liability In Surgery?

By Dan Bump SA-C, CSFA: I met a particularly interesting character at one of my surgical assisting labs last month. In his career, he went from being fired because he did something in surgery his surgeon asked him to do, to now working for a surgeon in his dream job as a Surgical Assistant. He’s taking our Surgical Assistant Program to make sure all his ducks are in a roll so he never has to repeat that painful experience again. Gladly, he now looks forward to a bright future. He went full circle.

Maybe you’ve had a similar experience that you can share with us in the comment section or maybe you’ve known someone who has. As a Surgical Tech, this gentleman was being asked to perform the tasks of a Surgical Assistant. Have you ever heard the phrase ‘techs can’t do that’ at your hospital? It’s more common than you imagine and, truth be known, they may be right. Even if you are a Surgical Tech or OR Nurse and think you can do something because you’ve seen it so many times, you should never do something in surgery or perform a role in which you weren’t formally trained and certified to do. Staying in your scope of practice protects you, your surgeons, your hospital, and your patients.

Sometimes the surgical team gets sued even when nothing went wrong. The patient is just less than thrilled with their results. You may have been recorded on the Op Report as a second scrub because you aren’t a formally trained and certified to first assist. Wouldn’t it be naïve though to believe you can hide the fact that you were really first assisting from even an average attorney? On discovering this juicy tidbit, he might decide to go after someone for ‘falsification of records.’ You suddenly turn into the weak link in the case and they’ll likely use you to take down the hospital and everybody else on the team.

You’ve got to cover your bases. Surgical Assistant training today is usually convenient for working surgery professionals and affordable enough for you to pay for it yourself if you had to. Tuition is cheap, lawsuits are expensive. When you are on the hot seat and the attorney asks “where were you trained to first assist in surgery,” you don’t want your eyes to glass over, your mouth to dry up, be left totally speechless, and appear guilty as hell, do you? You want to put on a shrewd smile and confidently pull out a copy of your surgical assistant program certificate and proof of your national certification so they can be entered as exhibits. The attorney can now move on to the next question. You’ve just avoided the ultimate humiliation or worse.

Also, when someone says “techs can’t do that (or nurses, or PA’s),” you have to be able to respond “You are absolutely right! That’s why I went to school and became nationally certified as a Surgical Assistant so I’d qualify to first assist in surgery.” Always be prepared with a great defense.

Even after formal training and certification, you still have to think ‘liability’ when your surgeon asks you to do something in surgery you don’t know how to do? Such an event can be embarrassing for sure and you may be tempted to fake it. After all, you’ve seen somebody else do it time and time again and it looks easy enough. Faking it until you make it is not a best practice in surgery. You have to know your limits. You have to tell your surgeon ‘No.’ Or you could use my template for handling these situations. It takes some courage, but saying ‘No’ to a surgeon may leave him thinking you are less than helpful or perhaps that you are disinterested. I would usually respond to a surgeon’s request to do something I haven’t been taught to do with “I’ve never done that before. If you teach me how, I’d be glad to do it for you.” That way you can’t be accused of doing something in surgery you weren’t trained to do. You might even want to write something up to document this training and have your surgeon sign it.

Whether you are a Surgical Tech, OR Nurse, PA, or NP, you owe it to yourself, even if it isn’t currently being required by your employer or your hospital, to cover all your bases when it comes to your liability. Who else is going to do it for you? If you are ever going to be required to first assist in surgery even if it is just to cover for the assistant who couldn’t make it, you should seek formal training and certification as a Surgical Assistant. You’ll benefit more than you can imagine:

  1. You’ll have a good answer for any attorney who asks how you qualify to first assist in surgery.
  2. You’ll have an excellent defense for anyone who questions your ability or credentials for performing all the tasks within your scope of practice as a Surgical Assistant.
  3. Proper training will give you the skills and knowledge you need to stay out of trouble and even to help your surgeon stay out of trouble. You’ll be less likely to be sued when you only do things you were trained to do and in your scope of practice.
  4. You’ll be able to shine when an assisting opportunity comes your way.
  5. You’ll have a more direct positive impact on your patients’ outcomes.
  6. You are not only going to effectively handle your liability issues, you are just going to love surgical assisting! It puts you right in the middle of the surgical action.

Having covered all your bases, you are now in pretty good shape and your future is looking up. Maybe you can get a better night’s sleep now. One more detail needs your attention.

Remember, no matter how well the surgery is performed, some patients sue anyway. You need to have your own medical malpractice policy. I mean one with your name on it. You can usually get a good policy for under $300 a year if all you do is first assist (PA’s and NP’s have other duties such as diagnosing and prescribing which carry greater liability and policies are more expensive). Don’t rely on the umbrella policy your employer got to cover his butt. If things go south and it is between you and your employer, who gets thrown under the bus? The lawyer is there to protect the policy owner. That may also include defending you – or not, if your interests are diametrically opposed to your employer’s.

If you have your own malpractice policy, you will receive the services of an attorney whose only loyalty is to you, no matter what is going on with your employer. Wouldn’t that make you feel protected? Is there anything better than a good night’s sleep?

I look forward to reading your comments and continuing our discussion.

Are you interested in becoming a Surgical Assistant? Contact ACE Surgical Assisting today to request more information and to learn more about advancing your career.