Updated: 1/23/2022

Legal Considerations in Orthopaedic Practice

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  • Informed Consent
    • Components
      • patients must be provided with all information needed to make an informed decision
      • diagnosis or medical problem for which treatment is being recommended
      • who will be performing surgery
        • surgeons who have tested positive for HIV/HBV/HCV should disclose this to the patient at the time of scheduling of an "exposure prone" procedure
      • description of the proposed treatment or procedure, including its purpose, duration, methods, and implements used, as well as the probability of success
        • origin of surgical implants should be discussed with patients
          • this may have implications for their use based on a patient's religious background
            • in Hinduism, use of bovine-derived implants should be discussed
            • in Judaism and Islam, use of porcine-derived implants should be discussed
      • all material risks of the procedure or treatment
      • any reasonable alternatives to the proposed procedure
      • risks of not being treated
    • Special situations
      • Health Information Portability and Accountability Act (HIPAA)
        • patient consent is not needed when communicating HIPAA-protected information to other treating providers
      • clinical trials
        • IRB approval for obtaining informed consent from patients enrolled in clinical trials is required
        • IRB approval is not required for quality improvement studies used for internal purposes only
          • purpose of the IRB is to ensure the rights and welfare of human subjects participating in research 
      • elective procedures
        • informed consent for elective surgical procedures is best obtained in the office/clinic setting a few days prior to scheduled procedure
      • emergent procedures in absence of legal consent
        • confirm necessity of procedure
          • in life-threatening injuries requiring surgical intervention but without available legal consent, the surgeon should confirm and document the necessity of care with a fellow orthopaedic surgeon or colleague
          • in non-life threatening injuries, consent must be obtained prior to surgical intervention (e.g. language barrier, pediatric patient)
      • non-consentable patients
        • legal guardians have highest precedence
        • "next of kin" precedence has been established to assist in determining order of consent: spouse, children (in no order), parents, siblings, grandchildren
    • Patient-physician relationship
      • termination of care can be initiated by the physician with due process
        • the patient must be notified in writing the relationship with be terminated
          • a grace period of 30-45 days of continued care to allow the patient to arrange for further treatment
          • termination without a grace period is considered abandonment 
  • Physician Errors
    • Communication errors
      • leading cause of wrong-side surgeries, medication errors, diagnostic delays, or loss to follow-up
        • results in increased treatment costs, treatment delays, and complications
      • Crew Resource Management
        • has been shown to improve communication and team dynamics
        • has led to an improvement in patient safety and team morale
    • Wrong site surgery
      • prevention
        • involve the patient in identifying correct side in the pre-operative area and prior to induction
        • display pertinent imaging in the operating room
        • mark the correct site with the surgeon's initials visibly in the surgical field
        • perform a time-out with the operating room team prior to incision
      • response when performed
        • acknowledge error with immediate discussions with the family
        • apologize and accept responsibility, but do not place blame
    • Surgical errors
      • prevention
        • surgical "time-out"
          • according to JCAHO, should include the following
            • identify correct patient, site, and side
            • verify the correct procedure
          • all members of the team should be present for the time out; alternatively, it can be repeated
        • surgical safety checklists
          • WHO implementation began in 2009
          • results in measureable improvements in
            • surgical mortality
            • in-hospital complications
            • adherence to surgical plan in OR crisis situations (e.g., massive hemorrhage, cardiac arrest)
          • surgeon is most effective OR team member at reducing complications when using surgical checklist and "time-out"
    • Medication prescribing errors
      • reduced when physicians use computerized order entry
    • Medical documentation errors
      • altering the medical record for any reason is illegal
      • no one has the authority to authorize a physician to alter the medical record
      • errors can be noted and addendums can be added
    • Second opinions
      • the second opinion surgeon is ethically required to disclose the effect of medical errors on patient outcome
      • only the patient can unilaterally decide to transfer care to a second surgeon
      • the surgeon is not ethically allowed to seek out transfer of care of a patient
  • Litigation
    • Overview
      • medical liability lawsuits involving orthopaedic surgeons increased by 13% from 2003 to 2008
        • thought to be related to the aging population
      • compared to other specialties, orthopaedic surgery has the 7th highest # of lawsuits
      • ~33% of all orthopaedic surgery claims result in payment to plaintiffs
      • average cost of defending orthopaedic surgery claims is ~$47,000 USD
    • Causes of lawsuits (as of 2008)
      • "improper performance" makes up 45% of lawsuits
      • most commonly associated procedures
        1. operative procedures of joint structures (not including spinal fusion)
        2. open reduction of dislocation
        3. closed reduction of fractures
        4. operative procedures on bones
        5. operative procedures on cranial and peripheral nerves
      • most commonly associated clinical diagnoses
        1. osteoarthritis (21%)
        2. disorder of joint, not including arthritis
        3. fracture of femur
  • Legislation
    • Stark Law (1993)
      • A federal regulation that prohibits self-referral of physicians to organizations with which they have a financial relationship.
    • Patient Protection and Affordable Care Act (2010)
      • provides numerous rights and protections that make health coverage more fair, easier to understand, and more affordable
    • Physician Payments Sunshine Act (2010)
      • requires collection and reporting of financial relationships between physicians/teaching hospitals and businesses (manufacturers of drugs, devices, medical supplies)
      • all payments > $10 must be reported to Centers for Medicare and Medicaid Services
  • Physician Impairment
    • Defined as the inability or impending inability to practice according to accepted standards due to substance use, abuse, or dependency/addiction
    • Surgeons (resident, fellow or attending) who discover chemical impairment, dependence, or incompetence of a colleague or supervisor has a responsibility to ensure that the problem is identified and treated
  • Medical Negligence
    • Negligence is the failure to provide the standard of health care resulting in medical injuries
    • A second-opinion physician has an ethical obligation, but not a legal obligation, to disclose if the standard of care has been breached by a treating physician
    • Successful patient-plaintiff lawsuits for medical negligence require that all of the following 4 elements be alleged and proven in a court of law
      • duty
        • obligation to provide care that meets the professional standard of care, i.e. the same standard of care ordinarily executed by surgeons in the same medical specialty
      • breach of duty
        • occurs when action or failure to act deviates from the standard of care
      • causation
        • established if it is demonstrated that failure to meet the standard of care was the direct cause of the patient’s injuries
      • damages
        • monies awarded as compensation for injuries sustained as the result of medical negligence
  • Workers Compensation
    • Principles
      • maximum medical improvement is reached when further restoration of function is no longer anticipated, allowing patients to settle their claim
      • ability of patients to choose their own physician varies according to statutes of each state
    • Legal definitions
      • impairment
        • loss of function resulting from an anatomic or physiologic derangement
      • disability
        • limitation of an individual’s capacity to meet certain personal social or occupational demands
  • Physician Employment
    • Independent contractor
      • relationship
        • employer influences the outcome
        • contractor determines the methods and means of achieving result of work
      • pay and benefits
        • employer does not pay taxes, provide insurance, or offer retirement benefits
    • Employed 
      • relationship
        • employer determines the result of the work and provides the means and methods for the result
          • provision of resources and training
      • pay and benefits
        • the employer pays taxes, provides insurance, and retirement benefits

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(OBQ18.176) Failure of effective communication in the surgical setting has been associated with what?

QID: 213072

Decreased treatment costs and increased complications

1%

(10/1757)

Increased treatment cost and increased complications

96%

(1691/1757)

Decreased treatment costs and complications

1%

(23/1757)

Increased treatment costs and decreased complications

0%

(7/1757)

No differences in complications and treatment costs

1%

(16/1757)

N/A A

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(OBQ18.2) During a new patient office visit, a physician asks an initial open-ended question to the patient. On average, how much time elapses before the physician redirects the patient's initial statement of concern?

QID: 212898

7 seconds

36%

(554/1539)

23 seconds

53%

(810/1539)

46 seconds

6%

(85/1539)

2 minutes

2%

(33/1539)

1 minute

3%

(40/1539)

L 4 A

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(OBQ13.263) An 82-year-old osteoporotic woman undergoes total hip arthroplasty for osteoarthritis. During implant trialing, a crack is heard. Intraoperative fluoroscopy reveals a long, spiral fracture of the distal femur. The fracture is reduced and fixed with an anatomic locking plate. The rest of the total hip arthroplasty proceeds uneventfully. Following surgery the surgeon has a meeting with the family and apologizes and provides full disclosure, accepts responsibility, provides a detailed explanation as to what happened, and gives reassurance that steps will be taken to prevent recurrences. This communication approach will most likely

QID: 4898

Lead to lower patient satisfaction rates

1%

(13/1617)

Lead to higher patient satisfaction rates

64%

(1030/1617)

Lead to higher likelihood the patient will take legal action against surgeon

2%

(30/1617)

Lead to higher likelihood the patient will change physicians

0%

(6/1617)

Prevent any legal action

33%

(527/1617)

L 4 C

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(OBQ13.77) Communication breakdown is the leading cause of which of the following?

QID: 4712

Delayed diagnoses

1%

(17/1876)

Medication errors

15%

(278/1876)

Surgical site infections

0%

(5/1876)

1 and 2

61%

(1149/1876)

All of the above

23%

(423/1876)

L 3 B

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(OBQ13.49) A 14-year-old patient has sustained a complete ACL tear of his right knee. Which of the following options has shown to be the most limiting factor for access to pediatric orthopaedic management in the United States?

QID: 4684

Sex of the patient

1%

(26/3717)

Type of health insurance

72%

(2676/3717)

Child greater than 10 years of age

4%

(154/3717)

Acute knee injuries requiring operative treatment

3%

(124/3717)

Timing of the referral

18%

(683/3717)

L 1 C

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(OBQ13.250) A 38-year-old female with a grade IIIB open tibia fracture is scheduled to undergo definitive fixation and subsequent flap coverage with the orthopaedic and plastic surgery teams. She is met in the pre-operative area by the surgical intern and paperwork is completed per institutional protocol. She is then brought back to the operating room. Which of the following is true regarding the pre-surgical timeout?

QID: 4885

The surgical intern must be present because he brought the patient to the operating room

6%

(192/3063)

The timeout cannot begin without the implant representative

2%

(72/3063)

If both the orthopaedic and plastic surgical teams are present, a single timeout is sufficient for the entire procedure

87%

(2656/3063)

The timeout may be completed as long as the attending is in an adjacent operating room

1%

(18/3063)

The pre-surgical timeout has not been shown to decrease complication rates

3%

(104/3063)

L 1 B

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(OBQ13.178) A 25-year-old Spanish speaking male presents to the emergency department 6 hours after sustaining the injury seen in Figure A. He is grossly intoxicated and screaming in pain. Physical examination reveals a closed injury with overlying muscular compartments that are extremely firm to palpation. After sedating the patient, measurements of the intracompartmental pressures were all found to be >75mmHg. His wife is Spanish speaking and expected to arrive to the hospital in 2-3 hours with a relative to help with translation. No medical translator is available. You attempt to outline the risk and benefits of surgery to the patient, but the he repeatedly interrupts you and yells out ,"No surgery!". An English-Spanish speaking friend is with the patient and says that he has known the patient for over 2 years and will help with any decision making. What would be the next most appropriate step in the management of this patient?

QID: 4813
FIGURES:

Delay surgery to monitor the patient for impending compartment syndrome

1%

(17/2786)

Proceed with surgery with urgent fasciotomy after documenting the necessity of treatment without consent

83%

(2313/2786)

Delay the surgery until the wife arrives and able to give informed consent with the aid of a translator

7%

(204/2786)

Proceed with surgery for urgent fasciotomy after obtaining informed consent from the patients friend

7%

(190/2786)

Respect the patients autonomy and reassess the patient in the morning when he demonstrates capacity to accurately comprehend the proposed treatment

1%

(40/2786)

L 2 B

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(OBQ13.159) The origin of bovine derived grafts is particularly important to which of the following religious groups?

QID: 4794

Christianity

0%

(12/3057)

Islam

10%

(319/3057)

Hinduism

80%

(2431/3057)

Buddhism

2%

(64/3057)

Judaism

7%

(217/3057)

L 2 B

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(OBQ11.217) Which of the following statements is inaccurate in describing the origin and purpose of the Institutional Review Boards (IRB)?

QID: 3640

Began with the Nuremberg Code of Medical Ethics, which was developed by the Nuremberg Military Tribunal after the investigation of Nazi physicians

7%

(59/847)

Fetuses, pregnant women, and children are considered vulnerable populations but prisoners are not

74%

(623/847)

Emphasizes dignity and autonomy, and encompasses informed consent (quid vide)

6%

(49/847)

The process for obtaining informed consent for patients included in clinical trials is mandated by the Institutional Review Board (IRB).

7%

(56/847)

Requires fair selection of subjects and equal distribution of the benefits and burdens of research

6%

(52/847)

L 2 C

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(OBQ11.197) As part of the "time-out" protocol recommended by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO), all of the following are required EXCEPT?

QID: 3620

Identify correct patient identity

0%

(10/2266)

Identify correct side of procedure

2%

(50/2266)

Identify correct site of procedure

6%

(129/2266)

Identify correct preoperative antibiotic

79%

(1795/2266)

Agreement on the correct procedure to be done

12%

(262/2266)

L 2 C

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(OBQ11.157) Which of the following determines when a patient involved in a Worker's Compensation claim is allowed to choose their treating physician?

QID: 3580

Federal statute

11%

(280/2456)

Health insurance carrier policy

12%

(291/2456)

County statute

1%

(33/2456)

State statute

63%

(1559/2456)

Employer human resources policy

11%

(275/2456)

L 3 C

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(OBQ10.267) Effective communication between physicians and patients has been shown to affect all of the following EXCEPT?

QID: 3250

Patient satisfaction

0%

(5/1941)

Patient adherence to treatment

3%

(54/1941)

Physician satisfaction

10%

(192/1941)

Incidence of malpractice suits

5%

(98/1941)

Incidence of Stark II litigation

82%

(1582/1941)

L 2 C

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(OBQ09.249) A 13-year-old girl with a displaced proximal tibia fracture is brought into the emergency department by her adult cousin. The fracture needs surgical management. The child is living with her cousin's family while her parents are in Germany. While the child speaks fluent English, her cousin and her parents are German-only speaking. How should you consent this patient?

QID: 3062

No consent is needed given the urgent nature of the injury, proceed with surgery

1%

(14/986)

Talk with the cousin, using the child as a translator

0%

(4/986)

Talk with the cousin, using a German-translator

6%

(58/986)

Call the parents in Germany, using the child as a translator over the phone

2%

(15/986)

Call the parents in Germany, using a German-translator over the phone

90%

(891/986)

L 1 C

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(OBQ09.159) A 65-year-old man sustains the reverse obliquity intertrochanteric fracture as shown in Figure A. He undergoes fixation with a sliding hip screw construct and his 3 month postoperative radiograph is shown in Figure B. His treating surgeon states that the "standard of care was performed for his fracture pattern" and the patient asks you as a consulting surgeon for a second opinion. Each of the following statements regarding your legal and ethical obligations as the consulting surgeon providing a second opinion are true EXCEPT?

QID: 2972
FIGURES:

Second-opinion physicians have an ethical obligation to discuss the standard of care for reverse obliquity hip fractures

7%

(63/945)

Second-opinion physicians have a legal obligation to become an expert witness for the patient/plaintiff in a negligence lawsuit against the treating physician

62%

(582/945)

Many states have mandatory or voluntary medical-error reporting systems that the consulting surgeon is ethically mandated to utilize

3%

(25/945)

Second-opinion physicians do not have a legal obligation to disclose errors made by other physicians

15%

(142/945)

It is a fundamental ethical requirement that a physician should at all times deal honestly and openly with patients

14%

(130/945)

L 3 D

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(OBQ08.206) A patient is consented for a right wrist open reduction and internal fixation. After the patient is prepped and draped, a skin incision is made. It is recognized intra-operatively, however, that a skin incision was made on the incorrect side (left). Subsequent right wrist open reduction and internal fixation goes uneventfully. What is the next best course of action?

QID: 592

do not tell the patient or family

0%

(2/938)

contact the Risk Management department

10%

(93/938)

immediately discuss the situation with the patient and family

89%

(838/938)

alter the medical record

0%

(0/938)

only discuss the situation with the patient if he or she brings it up.

0%

(2/938)

L 1 C

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(OBQ08.233) A 25-year-old man sustains a Grade III-A open tibial shaft fracture secondary to a motorcycle accident. The patient is unconscious and has no family members who can be reached for consent. What is the most appropriate course of action?

QID: 619

Document the necessity for treatment and proceed immediately with definitive fracture care

22%

(209/952)

Proceed with a preliminary irrigation and debridement in the emergency department, apply a splint, and wait for him to regain consciousness before proceeding with definitive treatment

10%

(93/952)

Contact a hospital administrator for approval of care

2%

(17/952)

Confirm and document the necessity of care with a colleague with similar expertise and knowledge prior to proceeding with surgery

65%

(618/952)

Proceed immediately to the operating room for definitive treatment without further documentation

1%

(9/952)

L 2 D

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(OBQ07.109) When a Workers' Compensation patient recovers after an injury to a point that further restoration of function is no longer anticipated, he or she is said to have reached which of the following?

QID: 770

Functional capacity

12%

(193/1635)

Maximum medical improvement

80%

(1304/1635)

Permanent disability

6%

(90/1635)

Impairment rating

1%

(21/1635)

Predesignation

1%

(14/1635)

L 2 C

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(SAE07SM.68) A player on a professional football team sustains a knee injury and is diagnosed with an anterior cruciate ligament rupture. When employed as the team physician, your ethical obligation is to inform

QID: 8730

the player but not the team.

33%

(166/497)

the team but not the player.

0%

(2/497)

neither the team nor the player.

0%

(1/497)

both the team and the player.

65%

(323/497)

the team, the player, and the media

1%

(4/497)

L 2 E

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(SAE07SM.52) A 21-year-old collegiate scholarship football player has an episode of transient quadriplegia. An MRI scan of the cervical spine reveals cord edema and severe congenital spinal stenosis. The athlete has aspirations of playing on a professional level and demands that he be allowed to play. The team physician should give what recommendation to the college?

QID: 8714

Do not allow the athlete to return to football.

92%

(574/624)

Allow the athlete to participate.

1%

(6/624)

Allow the athlete to play only if he signs a waiver.

3%

(21/624)

Suggest that the college and atahlete enter binding arbitration.

1%

(4/624)

Allow the athlete to play with special equipment.

2%

(12/624)

L 1 E

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(SAE07PE.1) A pediatric orthopaedic surgeon refers a child to a neurologist. The neurologist’s office requests the office records of the pediatric orthopaedic surgeon. To maintain Health Insurance Portability and Accountability Act (HIPAA) compliance, what must the surgeon obtain from the parent(s) prior to sending records?

QID: 6061

No additional consent needed

45%

(212/473)

Verbal approval

6%

(30/473)

Written approval

40%

(189/473)

Written approval with notarization

7%

(32/473)

Telephone consent witnessed by a nurse

1%

(3/473)

N/A E

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(OBQ07.146) The operative report of a recent patient incorrectly documents the timing of peri-operative antibiotic administration. How should the medical record be legally altered?

QID: 807

Obtain written approval from the hospital medical director

2%

(17/943)

Obtain written approval from the risk management team

5%

(51/943)

Obtain written approval from your lawyer and the senior partners of his law firm

1%

(6/943)

No approval is needed, as you were the treating surgeon and have identified the error

9%

(87/943)

It is illegal to alter the medical record, but an addendum can be made

82%

(773/943)

L 2 D

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(SBQ07PE.1) An orthopaedic surgeon is a team physician for a college football team. In which of the following scenarios is it appropriate to discuss a 19-year-old collegiate football player's lumbar spondylosis without additional consent from the player?

QID: 1486

Discussing with the player's mother

12%

(97/841)

Discussing with the player's treating chiropractor

82%

(687/841)

Discussing with the player's long-time highschool football coach

5%

(39/841)

Discussing with a reporter from a local newspaper

1%

(6/841)

Discussing with the player's fiancee

1%

(6/841)

L 2 D

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(OBQ07.61) A busy orthopaedic surgeon enters the operating suite to a prepped and draped patient who is scheduled for a right knee ACL reconstruction. During the diagnostic arthroscopy, the surgeon sees an intact ACL. The MRI is reviewed and found to be of the left knee. Wrong site surgery could have been likely avoided if which of following was done?

QID: 722

Confirmation of the operative procedure with the circulating nurse

4%

(30/856)

Confirmation of the correct site with the resident taking care of the patient

1%

(6/856)

Examining the patient the day before in the office

2%

(14/856)

Confirming and placing initials on the operative extremity with the patient in the pre-operative holding area

93%

(795/856)

Giving the patient instructions to mark their own extremity the night before surgery at home

1%

(9/856)

L 1 D

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(OBQ07.32) Which of the following terms is defined as a loss of function resulting from an anatomic or physiologic derangement?

QID: 693

Disability

42%

(369/875)

Impairment

50%

(436/875)

Injury

5%

(44/875)

Apportionment

0%

(2/875)

Incapacitation

3%

(22/875)

L 4 D

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(OBQ07.267) Which of the following terms best describes failure to exercise the degree of diligence and care that a reasonable and prudent person would exercise under similar conditions?

QID: 928

Intent

1%

(17/1388)

Causation

2%

(22/1388)

Standard of care

32%

(448/1388)

Breach of duty

64%

(883/1388)

Damages

1%

(15/1388)

L 5 D

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(OBQ06.76) What function does computerized physician order entry have on medication monitoring?

QID: 187

Reduces the rate of medication errors

87%

(766/881)

Improves physician satisfaction

3%

(24/881)

Decreases narcotic requirements by patients

1%

(10/881)

Increases rates of allergy related medication errors

3%

(23/881)

Improves physician knowledge about the drugs they are prescribing

6%

(52/881)

L 1 D

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(OBQ06.164) You are caring for a 50-year-old male who is 2 years status-post a work related pilon fracture. Since this is a workers compensation case, your patient is interested in settling his claim. When can his claim be legally settled?

QID: 350

Once the fracture has united

1%

(8/814)

2 years post-injury

6%

(51/814)

Following release to light duty work

2%

(16/814)

Following release to full duty work

8%

(65/814)

Not until maximum medical improvement is declared by you as the treating physician

81%

(662/814)

L 1 C

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(OBQ05.263) A 60 year-old male was brought into the operating room for total hip replacement. Before making the incision, what precautionary procedure must be performed by the entire staff to minimize surgical error?

QID: 1149

Mark the word "No" on the nonoperative extremities

1%

(9/1014)

Use intraoperative fluoroscopic imaging

1%

(8/1014)

Perform "timeout"

98%

(989/1014)

Have blood products ready in the operating room

0%

(4/1014)

Use the newest prosthesis

0%

(1/1014)

L 1 D

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(SBQ04PE.32) Prior to undergoing a total knee arthroplasty at an academic medical center a patient is told during informed consent by the attending surgeon that resident involvement in the case will be limited to retracting. During the case the attending is present up to trialing of the selected components. The surgeon leaves prior to cementing to start trialing components in another case while the chief resident remains alone in the room for the completion of the case. Which of the following is true regarding the ethics of this practice?

QID: 2217

This practice is ethically sound as the attending was present for the surgical timeout

1%

(13/1730)

This practice is ethically sound as long as another attending surgeon was immediately available to assist

3%

(49/1730)

This practice is ethically sound as the surgery was performed at an academic medical center

1%

(15/1730)

This practice is ethically unsound as this represents overlapping surgery

9%

(153/1730)

This practice is ethically unsound as the patient was misled

86%

(1486/1730)

L 1 D

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