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Duck! Does the Sales Rep Have Med Mal Exposure?

Updated: Sep 1, 2021

A spinal operation was planned for a single level fusion. Allegedly, the spinal implant was larger than the one the surgeon had wanted to use. It was replaced with a smaller one a few days later. All's well that ends well? Not so fast.

Is the sales rep now exposed?

In this case, lawsuits have been initiated against the surgeon, the implant maker and its distributor and sales representatives, alleging their negligence led to the patient's injuries. The allegation is that because the right-sized implant was not available, the patient was harmed. All parties deny wrongdoing. The case is set for trial in November.

Cue the checklist

Atul Gawande, writing in Checklist Manifesto says, “The volume and complexity of what we know has exceeded our individual ability to deliver its benefits correctly, safely, or reliably.” This is the purpose of the time out.

The key elements of the time out are to confirm:

  • Correct patient identity

  • Correct site

  • Procedure to be done

Notably absent from this list? Appropriate implants are available. Look for the courts to offer an opinion whether there is a burden to have appropriate sizes of implants available for use in the OR. If this is the legal decision, look for medical sales reps to join the medical malpractice melee.

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