Call us today at 281-580-8800 or email us at ask@painterfirm.com

Plaintiff alleges that paperwork was inconsistent and OR staff didn't notice because they didn't conduct a mandatory surgical time-out Contact Now

Houston lawsuit: Informed consent, surgical time-out mishap leads to unwanted sterilization during planned C-Section surgery

Plaintiff alleges that paperwork was inconsistent and OR staff didn't notice because they didn't conduct a mandatory surgical time-out

There are some errors that simply should never happen. The hospital accrediting organization called The Joint Commission describes these errors as sentinel events. Some healthcare providers also refer to them as never events.

One area of healthcare where there’s a continuous cluster of sentinel events is in the operating room (OR). That’s why The Joint Commission made a National Patient Safety Goal, or priority, several years ago to require accredited hospitals to enact policies and procedures for a surgical time-out.

Any hospital accredited by The Joint Commission must have a surgical time-out policy and procedure in place.

The purpose of a surgical time-out is to avoid surgeries on the wrong person or the wrong site. Even though the surgical time-out is now a well-recognized requirement, we still see these types of cases regularly at Painter Law Firm. Over the past few years, we have handled medical malpractice litigation involving a surgeon operating on the wrong patient and multiple cases of performing an incorrect surgery.

A surgical time-out works like this. Every member of the surgical team, including the surgeons, nursing staff, and anesthesia team (anesthesiologist and certified registered nurse anesthetist/CRNA) must be physically present in the OR, actively stop what they’re doing, and actively communicate and talk among themselves during the time-out.

During the surgical time-out, the surgical team members must discuss and agree on:

• The correct patient identity.

• The correct site for the surgery.

• The correct surgical procedure(s) that are to be performed.

A surgical time-out also includes making sure that all pre-surgical paperwork is consistent with the procedures discussed. Even better, many surgical experts recommend having the surgical time-out done before general anesthesia begins, so the patient will be awake and able to participate in the time-out conversation.

A recent Houston case involving an obstetrical surgery at Texas Women’s Hospital highlights accusations of what can go wrong when the entire operating room team doesn’t participate in an adequate surgical time-out. The case is styled Luke David Walker, MD v. Priyanka Srivastava; No. 14-19-00270-CV, In the 14th Court of Appeals. You can read the appellate court opinion here.

According to the patient, she gave birth to her son by a planned cesarean section (C-Section). During the course of her prenatal care, the patient doesn’t recall ever being told that a tubal ligation, which is a permanent sterilization procedure, would be performed along with the C-Section. Thus, she was understandably surprised to discover this fact after her son was delivered.

The patient recalls being given a stack of consent forms and being asked to sign or initial her name in 15–20 places. Although one consent form specified that a tubal ligation would be performed, three other consent forms stated that the only surgery that was going forward was a C-Section. That’s what the patient understood to be the case, and those three consent forms didn’t mention a word about tubal ligation or permanent sterilization.

Luke David Walker, MD is an anesthesiologist and was one of the members of the OR team. The patient sued Dr. Walker and other healthcare providers, alleging substandard care including:

• Failing to review the consent paperwork and recognize and iron out discrepancies in them before the surgery began.

• Failing to participate in a surgical time-out procedure in the operating room before the surgery began.

• Failing to document performance of the surgical time-out procedure in the medical records.

After filing a medical malpractice lawsuit, the plaintiff complied with the tort reform requirement of producing a medical expert report within 120 days of the defendant filing an answer in court. The plaintiff relied on an expert report written from a board-certified obstetrician/gynecologist (OB/GYN).

Anesthesiologist Dr. Walker objected to the plaintiff’s expert report because it was written by an obstetrician/gynecologist instead of an anesthesiologist. The Houston Court of Appeals quickly rejected that, noting that the plaintiff’s claims against Dr. Walker and other defendants dealt with a lack of a surgical time-out, rather than anesthesiology-specific issues.

Well-settled legal principles point out that the specialization of the physician expert isn’t the material question, but rather familiarity with and knowledge of the specific issue in the case is required to qualify the expert.

The plaintiff’s medical expert report then proceeded to connect the substandard care to patient harm. The expert pointed out that the failure of the anesthesiologist, OB/GYN surgeon, and operating room nursing staff of Texas Women’s Hospital to conduct a proper review of the consent paperwork and a surgical time-out before beginning surgery. This led to a performance of an unnecessary tubal ligation and sterilization for this patient.

The expert explained that if any physician or nursing member of the surgical team had spoken up, initiated, or ensured performance of a time-out procedure, the patient would have been informed of the risks and benefits of the sterilization procedure. By affidavit, the patient testified that she would never have given her consent to being sterilized during her C-Section surgery.

By approving the sufficiency of the report, Houston’s Fourteenth Court of Appeals allowed the case to proceed in the 151st District Court of Harris County, Texas, where The Honorable Mike Englehart is the presiding judge.

If you’ve been seriously injured by medical, surgical, or operating room errors or care, then contact a skilled, top-rated Houston, Texas medical malpractice lawyer for help in evaluating your potential case.

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him by calling 281-580-8800 or emailing him right now.


// Read full biography
// Read more expertise by Robert Painter

Discover More