Critical issue: Oversight of robotic surgery
(Editor's note: In this second part of a two-part series, we discuss how facilities can manage risks that come with cutting-edge technology. Last month we discussed the details in the case of a surgeon investigated for his robotic surgeries and how the facility became involved.)
In the case involving allegations of unprofessional conduct against a Colorado surgeon, the use of a robotic surgery arm might be only a distraction, say two malpractice attorneys. No matter what equipment was used, the real issue might be whether the facility adequately credentialed him and required him to meet the same performance standards as any other surgeon, with or without the robot.
Warren Kortz, MD, of Denver is under investigation for 14 robotic surgeries with poor outcomes or adverse events. The Colorado Board of Medical Examiners has charged Kortz with 14 counts of unprofessional conduct after failed procedures with the robotic surgery arm owned by Porter Adventist Hospital in Denver. According to the complaint filed by the board, from 2008 to 2010 Kortz cut and tore blood vessels, left sponges and other instruments inside patients after closing, injured patients through improper padding and positioning, subjected some to overly long surgeries, and had to abort kidney donations because of mistakes. The board also alleges that Kortz failed to properly document some of those problems. The state is asking an administrative judge to suspend Kortz's license to practice medicine.
Porter Adventist Hospital in Denver could be held liable if the plaintiff shows that the surgeon was insufficiently trained or skilled on the robotic device, because the hospital allowed him to operate there, explains Daniel P. Slayden, JD, a partner with the law firm of Hinshaw & Culbertson in Joliet, IL. Moreover, the hospital marketed the robotic surgery and included Kortz in the marketing efforts. A plaintiff could claim that the hospital gave the doctor a pass on surgical outcomes that would raise a red flag with other doctors because he was generating significant revenue for the hospital, Slayden says.
The hospital is more likely to be drawn into such a case when the state has no liability cap, explains Rodney K. Adams, JD, a shareholder with the law firm of LeClairRyan in Richmond, VA. The plaintiff will look to the deeper pockets of the hospital and allege negligent credentialing, failure to have a safe environment, and similar issues. "In Virginia, for instance, most physicians are insured to the cap, and so the plaintiff doesn't need four or five defendants," he says. (For information on how to comply with credentialing accreditation standards, see SDS Accreditation Update.)
Although some facts are not known about the Denver case, Slayden notes that it does highlight a particular risk of working with new technology. Like lasers 20 years ago, robotic surgery is now a cutting-edge, high-tech treatment option that can draw in more patients to the hospital, but Slayden cautions that managers must apply the same patient safety standards.
"Patients with choices will decide where they want to be treated based on marketing that shows the latest, most up-to-date technology in use," Slayden says. "But what standards are you setting for your physicians so you can be comfortable that they are properly trained and skilled? It can be a grey area, because if it is new technology, the only training might come from the company that makes the device, and they certainly want doctors to be certified so they can sell the product."
Adams notes that patients can drive the use of such technology and physicians will want to respond. The equipment can cost millions of dollars, so facilities sometimes are heavily incentivized to market the technology and look the other way if outcomes are not good, he says.
Watch for any tendency among administrators and clinical leaders to accept lower quality or more threats to patient safety when cutting-edge technology is used, Slayden says. "Those temptations will always come up with any new technology. That's the nature of the beast," Slayden says. "Your job has to be to hold the line on what is an acceptable record and not change that because your doctor or your hospital really wants to use this device."
But expect some push back on that, Adams cautions. "That's going to create some tension with the marketing department. We saw the same thing with bariatric surgery, when so many hospitals wanted to get into that field because it is very lucrative and there's a big demand for it," Adams says. "A lot of hospitals have since gotten out of it because bariatric surgery requires a lot of training and brings some real challenges for the facility and a high complication rate. The marketing department and the accountants might have wanted to keep it, but someone had to step in and say this isn't the best thing for us to offer."
