Surgeons occupy a challenging position in the medical field. When a physician takes an oath to “do no harm,” they must utilize their vast array of skills and education to achieve this outcome. However, surgeons constantly have to weigh the risk of harming a patient when operating on that patient.
Advances in medical science have exponentially lowered the risks of many surgical procedures—rendering many once invasive and costly operations safe and efficient. However, every surgical procedure comes with some risk that a patient ends up worst off or tragically loses their life in the process. When this happens, surgeons in Texas need to know the realities of medical procedures that end fatally for the patient.
How Can I Mitigate Exposure of My Medical License When Performing Surgical Procedures?
An experienced surgeon reading this will know the general procedures necessary to commence the process to operate on a patient. Nonetheless, it is good to provide a refresher, especially if one’s medical license is at risk.
Usually, when a physician determines a patient may benefit from a surgical procedure, the physician must abide by a set of rules before operating on the patient. All surgeries require a patient’s informed consent to operate. The Texas Health and Human Services Commission (HHS) defines informed consent as “the permission given by a patient to perform a medical treatment or surgical procedure after the patient has been advised of the risks or hazards that could influence a reasonable person in deciding whether or not to give permission.” Informed consent can only be given once the patient is made fully aware of all risks involved in the procedure.
To determine what types of information a patient must receive to acquire their informed consent, HHS tasks the Texas Medical Disclosure Panel to set the rules for surgical disclosure. The panel, made up of surgical professionals and attorneys, promulgates the disclosure rules. Under applicable sections of the Informed Consent Statute, a patient harmed due to a surgical procedure and was unaware of the consequences must provide evidence the physician was negligent in their duty to disclose risks associated with the procedure. Failure to abide by the informed consent statute can result in discipline, including revocation of one’s license.
What Happens When a Patient Dies on the Operating Table?
All surgical procedures come with some risk of injury or death. However, the issue of a patient injury or death and whether a surgeon is responsible for the outcome hinges on a question of causality. As a surgeon, you must ask yourself, what caused this patient’s death? By answering the question, you can determine whether the cause of the patient’s death was related to the inherent risks of the surgical procedure being performed or surgeon error.
If the procedure caused loss of the patient’s life, then the surgeon is likely not at fault and will not risk the loss of their medical license. However, if the surgeon intentionally or unintentionally (negligently) caused the patient’s death, then the risk of losing their medical license is much higher.
What If I Was Negligent in My Medical Duties?
Because medical malpractice falls under tort law, courts determine liability based on the facts of each case and opine on the level of liability a tortfeasor (the party that has committed the tort). Overt acts or intentional acts offer the harshest liability and would almost certainly result in losing one’s medical license. For example, this could be knowingly performing a surgical procedure while under the influence of drugs or alcohol.
Negligent acts can also carry harsh penalties. Surgeons negligent in their duties violate §190.08 of the Texas Administrative Code, which guides the Texas Medical Practice Act. Forms of negligent acts under the code include:
- Failure to adhere to the generally accepted standard of care for treatment
- Failure to use proper diligence in one’s medical practice
- Failure to safeguard against potential complications
- Failure to disclose reasonably foreseeable side effects of a procedure or treatment
- Failure to disclosure reasonable alternative treatments to a proposed procedure or treatment
- Failure to obtain a patient’s informed consent regarding medical tests, treatment, procedures, or autopsies
Violations of the act can prompt the TMB to investigate and levy the physician’s discipline in question. In addition, negligent acts can result in the temporary suspension or total revocation of a medical license.
Common Forms of Surgical Error Resulting in Patient Death
Because surgery is a delicate and invasive form of patient care, simple mistakes can significantly. Typical forms of surgical errors can include:
- Poor communication between members of the surgical team
- Surgeon fatigue or intoxication
- Failure to plan for complications that may arise during surgical procedures
- Shortcuts during the surgical procedure
- Neglect in the preparation of the surgical procedure
Procedures to Complete to Prepare for the Loss of a Patient’s Life
Texas state law requires that all physicians called upon to sign a death certificate must register with the Texas Department of State Health Services (DSHS) Electronic Death Registration (EDR).
Because it takes DSHS officials to approve an application for registration, physicians cannot wait until the death has occurred to register—that would be too late. Instead, a physician would have to complete a paper death certificate. This is a violation of the Texas Health and Safety Code §193.005. Violations of the code may trigger action by the Texas Medical Board to take disciplinary action against the physician, which could impact the status of their medical license.
Contact Us Today If Your Patient Lost Their Life During a Medical Procedure
No physician wants their patient to die, especially during a medical procedure designed to aid the patient or improve their quality of life. However, sometimes the outcome of a medical procedure is entirely out of a surgeon’s control. It is best to contact an experienced professional medical license attorney for representation when this happens. At Bertolino LLP, we can help investigate claims made against you, represent you before the TMB, and craft a legal defense to protect your license. Call us today for a free consultation or visit our website.