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Punishment for Fatal Error a Tough Call

May 21, 2015
Originally published on May 21, 2015 9:13 am

  Two years ago, a little boy with a leaky heart valve was rolled into the operating room at Arnold Palmer Children’s Hospital in Orlando.  Before starting surgery, as required, the team took a “Time Out.”

Doctors and nurses made sure they had the correct patient on the table – Justin Solnay, age 11 – and were planning the right procedure – replacing Justin’s weak aortic valve with a mechanical implant. They ran through the list; check, check and check.

But there was one question no one thought to ask: Did they have the right valve? Did the nurse fetch the right box from the supply closet?

The answer: No.

Last month, the Florida Board of Medicine asked the surgeon who operated on Justin that day, Dr. Kamal Pourmoghadam, how such a fatal mistake could have happened.

“We thought we had sufficient safeguards,” the surgeon said. “Obviously that was not the case.”

The mistake wasn’t discovered for three days, when Pourmoghadam re-operated and replaced the wrong valve with the right one.  But it was too late; Justin remained on life support until his death at UF Health in Gainesville, where his parents had moved him.

“We watched Justin deteriorate for five weeks before he died,” Jim Solnay, Justin’s father, told the board through sobs.  “This could so easily have been prevented.”

Studies show that every year across the nation, hundreds of preventable surgical errors are committed, of which about two-thirds involve an error in technique. The remaining third are the slip-ups: a sponge or instrument left behind or a wrong-side or wrong-patient or another similar error, as in the Solnay case.

Last month, the grieving father pleaded for the board to take Pourmoghadam’s license. Had it occurred a decade ago, that might have happened.  But not today.

Of the 415 medical doctors that the Florida Board of Medicine has disciplined for wrong-procedure incidents since 2003, only three licenses were revoked and four suspended, state Department of Health records show. And they all happened during a crackdown in 2004 and 2005.

In 2006, after seeing some of the most skilled surgeons in the state involved in these cases, the board changed its policy. Given that a whole team of licensed health professionals is typically involved in a mistake, the board began to call them “systems errors.”

Now, unless there is evidence the surgeon attempted a cover-up, was drunk or otherwise grossly negligent, the medical board now resolves such cases with a fine and some other minor punishments – no reprimand, no probation.   

By the time a case makes it to a board hearing, the hospital and surgeons where the mistake took place have invariably instituted new checklists and other tools to prevent a recurrence. Orlando Health, the system of which Arnold Palmer is part, said that after the wrong-valve incident involving Justin Solnay, it took corrective action at all seven of its hospitals.

And still, such errors keep happening, said Dr. Jeff Fabri at the University of South Florida, who is a surgeon who went into engineering to improve patient safety. He says the reliance on tools such as checklists hasn’t worked.

“Logic tells you that if everybody is going through the exercise of a time-out, that it ought to have beneficial effect,” Fabri said. “If it’s not having a beneficial effect, then something else is happening to offset that, an unintended consequence.”

The nurses and doctors in the room are hearing the checklist but their minds are somewhere else, he said. They may be thinking about the challenges of the operation ahead or possibly planning what to have for dinner.

They think they are participating, Fabri says, but “really they’re not doing it, they’re going through the motions of doing it.”

There is no way of knowing whether that’s what occurred in the operating room at Arnold Palmer Children’s Hospital on March 20, 2013. The state’s investigative file says that the St. Jude brand mechanical valve that was implanted to replace Justin’s own weak aortic valve was one intended for another chamber of the heart. It was a mitral valve.

The two look very much alike, differing in size by only millimeters, according to records in the case. But they can be distinguished by their different-colored boxes and by their serial numbers, which contain an “M” for mitral or an “A” for aortic.

Mark Perenich of Clearwater, the attorney for the Solnays in a medical-malpractice suit against the hospital, said the surgeon should have made sure that he had the correct valve.

“He left the process of verification to the circulating nurses,” Perenich said at the medical board hearing April 10 in Deerfield Beach. “The life of an 11-year-old child demands vigilance.”

The surgeon’s attorney, Michael D’Lugo of Orlando, countered that Dr. Pourmoghadam has impressive credentials and experience: two cardiothoracic surgery fellowships, including one in pediatrics, and 2,000 cardiac procedures in 19 years of practice.

“This is a tragic, tragic event, there’s no doubt about it,” D’Lugo said.

But he urged the board to adopt a proposed settlement in the case that he worked out with DOH prosecutors, saying it was appropriate and consistent with similar cases in the past. It called for a $30,000 fine, a “letter of concern,” courses on record-keeping and risks, and delivery of a speech to other doctors on prevention of errors.

Patients or their family members hardly ever attend medical board hearings, let alone bring their lawyer, so having Jim and Patti Solnay at Dr. Pourmoghadam’s hearing was unusually emotional.

In pleading for a harsh penalty – revocation or suspension – for the surgeon, the Solnays and their attorney placed board members in an uncomfortable position, as several acknowledged.

Board Chairman Dr. James Orr of Bonita Springs described the hearing as “agonizing for everyone in this room.” He assured them that board members had reviewed all the records and would try to make a wise decision.

After thanking the Solnays for coming, board member Dr. Nabil El-Sanadi of Fort Lauderdale told them that pediatric cardiothoracic surgeons are rare.

“It’s difficult to find one, and if you get a good one, that’s someone you should keep,” he said.

El-Sanadi asked Pourmoghadam what measures he has taken since the incident, and the surgeon said they now have an “implant form” that has to be checked off before surgery, certifying that multiple people have checked the box before removing the implant and have checked the device itself before using it.

Also, he said, a white erasable board with all the patient’s details is now installed in all the operating rooms.

El-Sanadi also asked Pourmoghadam, who had told the Solnays what happened face-to-face, why he had not entered the information about the error into the medical records until months after the event. 

Pourmoghadam agreed he “should have documented it” sooner,  but said that while the child was ailing, he was only focused on figuring out what was wrong and what to do about it.

Several board members were curious about why Pourmoghadam didn’t notice there was a blood-flow problem at the valve site when a test that produced pictures of the heart was performed in the operating room.  

“I’ve wracked my brain -- not just me, all of us – why we didn’t see that” and recognize what it meant, Pourmoghadam said. “I wish I had a good answer. I do not.”

The only cardiologist on the medical board, Dr. Zach Zachariah of Fort Lauderdale, said the records show that “this doctor is superbly qualified, no question about it.” The whole team made a mistake, Zachariah said.

“It’s a system failure, I’m telling you, it’s a system failure. Almost everybody failed in this system,” he said. 

Board member Dr. Enrique Ginzberg of Miami told the Solnays that it would not really benefit the public to remove Pourmoghadam from practice “because he can still save lives.”

“I asked that man specifically to look at the valve,” Jim Solnay replied, speaking of Pourmoghadam. “He refused to consider it. My son lay in the ICU three days; nobody wanted to touch him. They kept asking me to remove him from life support. They didn’t even know what was wrong with him. “

Board member Dr. Merle Stringer of Panama City asked Pourmoghadam whether he felt any responsibility for what happened to Justin.

“Absolutely,” Pourmoghadam responded, “As one of the leaders of the team, I take responsibility for that. Yes, sir.” 

The board voted to adopt the settlement. Pourmoghadam will receive a “letter of concern” and must pay a $30,000 fine plus the state’s costs of more than $10,000. Apart from that, he must take short courses in record-keeping and risk management and deliver a lecture to other doctors on preventing errors.

The state also has a pending administrative complaint against another surgeon who participated in the case, William DeCampli. He is named in the Solnays’ lawsuit, as well. Neither of the two nurses named in the lawsuit, Melissa L. White and Sheryl M. Leo, has a pending license complaint, according to the Department of Health license lookup website.

The Solnays can, of course, continue to pursue their lawsuit against Arnold Palmer Children’s Hospital and its parent, Orlando Health, and against Pourmoghadam and others involved in Justin’s care.

As for Orlando Health, Public Affairs Manager Desmond Jordan told Health News Florida, “We respect the decision made by the Florida Board of Medicine and hope it begins to provide some measure of closure to everyone involved.”

Fabri, the USF patient-safety engineer, says the kinds of errors that experts commit – slip-ups when they have other things on their mind – will continue to happen until there is a change in the culture of medicine.

“Everybody feels terrible when there’s a wrong-patient/wrong-side surgery – terrible! Nobody says, ‘Well, so what?’ It’s life-changing for everybody involved,” he said. But it keeps happening.

“You need to incorporate this from day one of medical school,” Fabri said. Students need to hear the message every day “so that when they leave, they say, ‘The safety of my patients and the quality of their care is the most important thing I do every day.”

Carol Gentry is a special correspondent with WUSF in Tampa. Health News Florida receives support from the Corporation for Public Broadcasting.