Trial Magazine

“I think we have a fire.” The scrub tech’s words were an understatement. Suffering burns under the surgical drapes on which the tech’s hand lay was a 28-day-old baby girl named Dahlia. Although Medicare considers surgical fires “never-events,” they still happen all too often.¹

The operating room (OR) is a dangerous place. Three elements are needed to start a fire: fuel, oxidizer, and ignition. Together, these elements are the “fire triangle.” Fuel is the object that burns and can be anything: skin, bone, plastic, cloth, and even steel. The oxidizer—most commonly oxygen—is a chemical that is necessary to both create the fire and enhance it. It intensifies combustion to make things that are normally difficult to burn (plastic, for example) burn more readily.² Ignition is the heat source that starts the combustion. The fire triangle creates a fire anywhere it comes together: forests, factories, homes, skyscrapers, offices, cars, and—of course—hospitals.³

ORs in particular contain a bastion of easily ignitable fire triangle elements.⁴ For example, all room air contains roughly 20 percent oxygen, but many surgical patients need much higher levels—sometimes as high as 100 percent. This environment allows almost anything to burn easily.⁵

Operating rooms also have ubiquitous amounts of highly flammable fuels, such as alcohol-based prepping agents, and readily available ignition sources in the form of electrocautery and laser devices. All operating rooms, then, are tinderboxes that will burn unless preventive steps are taken.

An Institutional Problem

Preventing fires is easy: Interrupt the fire triangle. Take away any one element, and there is no fire. Yet operating room fires still happen. Why? The common denominator is inadequate training.

True fire safety requires everyone on the surgical team to identify the fire triangle present in their surgery. The team approach is critical because different perioperative professionals exclusively control different elements of the fire triangle: Anesthesia professionals generally control the oxidizers, such as the oxygen and nitrous oxide; nurses control flammable fuels, such as sponges and alcohol-based preps; and surgeons control the ignition sources.⁶

Unless everyone in the OR knows the specific fire risks that each of the others controls or creates and is empowered to communicate to each other about eliminating these risks, they end up acting independently—and independent action leads to fires.

For example, a surgeon who doesn’t know that the uncuffed endotracheal tube used by the anesthesiologist allows enriched oxygen to leak into her operative field also won’t know that she may ignite a fire with her electrocautery device. A nurse who doesn’t know that enriched oxygen is being used or that the antibacterial prepping agent he’s applying is alcohol-based won’t know to tent the drapes to allow those gases to escape. Under these circumstances, luck is the perioperative team’s only shield against fire.

The better approach—and the one strongly recommended by the safety literature on the topic—is to make sure that each perioperative professional is trained to recognize all OR fire risks, to eliminate them, and to communicate with each other to reach agreement on how best to eliminate them.⁷ A surgical team trained in fire safety has numerous tools at its disposal to eliminate fire.⁸ For example, the anesthesiologist may agree that the enhanced oxygen he intended to use is unnecessary, the nurse can agree to arrange the surgical drapes to eliminate oxygen buildup, or the surgeon can choose to use a scalpel instead of an electrocautery device.

But none of these tools matter unless the perioperative team makes time to discuss the surgery’s fire risks. Most surgeries already have a “time-out” procedure in place to discuss elimination of other “never-risks,” such as ensuring the team is operating on the correct body part. This time-out can be expanded to include fire risks, or fire can have its own time-out.

Unfortunately, many hospitals do not do enough to train and test their perioperative teams, especially their doctors, on fire safety. In Dahlia’s case, neither the surgeon nor the anesthesiologist was ever trained or tested in OR fire safety before receiving OR privileges, and they knew next to nothing about preventing fires. The nurses were only marginally better trained, but they were not empowered to question the doctors.

Hospitals will argue that doctors are independent contractors with an independent duty to learn fire safety, but it is the hospital that advertises for surgical patients, gives doctors the privilege to operate in its OR, and is in the best position to ensure that no one operates without fire-safety training. Fire safety is an institutional problem that demands an institutional solution.

Where To Start

At the most basic level, OR fires result from the negligence of one or more of the perioperative team members—the surgeon, the anesthesiologist, the nurses, or even the scrub tech. Each of these individuals owes a duty of care to his or her patient to interrupt the fire triangle. Most pleadings, then, involve simple claims of negligent failure to prevent the fire.

Because OR fires do not happen without someone’s negligence, pleading the doctrine of res ipsa loquitur may make sense. But because surgeries involve at least three different medical specialties—meaning three potential defendants—proving the exclusive control element of res ipsa loquitur may be difficult under your state law.⁹ -Moreover, research shows that many jurors hold a “stuff happens” bias, leading them to excuse unintentional hospital mistakes.¹⁰ Consequently, lawyers must not rely on res ipsa loquitur unless they have no other choice.

Preserve the Evidence

A fire leaves clues about itself from the things it burns, allowing fire experts to determine how a fire started. For example, melted plastics point to an enhanced oxygen environment. This physical evidence often proves causation more reliably than testimonial evidence, as the latter often suffers from defensive interpretation of events. For example, in Dahlia’s case, the melted endotracheal tube definitively disproved the anesthesiologist’s claim that he reduced Dahlia’s oxygen to room air levels long before the fire started.

Because physical evidence is so important, the first thing you must do is take steps to preserve it. Some states, such as New Jersey, have a procedure that allows a party to obtain discovery before filing suit.¹¹ In states without it, you may need to file a “John Doe” complaint, if allowed, or you may file the lawsuit itself to force preservation of the evidence. At a minimum, you should send an immediate written request to the hospital listing the items to preserve. Often this is enough to trigger a duty to preserve, the failure of which gives rise to a spoliation claim.¹²

At the outset, you should request the preservation of nearly everything in the OR, including the parts of the anesthesia machine that are surgery specific, such as the breathing circuit and endotracheal tubes, as well as the bedding, surgical clothes, drapes, gauze, gloves, and whatever was thrown in the trash. In Dahlia’s case, we found charred drapes and pads in the trash cans, as well as gauze soaked in the alcohol-based antibacterial prep agent.

You also may consider preserving the anesthesia equipment, but in my experience, taking an anesthesia machine out of circulation for an extended time—especially in small hospitals—is not a request most hospitals will agree to voluntarily or most courts will grant.¹³

Moreover, persevering the anesthesia machine may be unnecessary. A long-established standard of care in anesthesiology is to conduct an “anesthesia apparatus checkout” before every surgery, significantly lessening the likelihood of equipment failure as a fire cause.¹⁴

Some hospitals have also implemented an Anesthesia Information Management System (AIMS) that uses specialized equipment and software to record an electronic version of the anesthesia record. If AIMS or similarly recorded data exists—which you can find out by asking the hospital—you gain not only accurate information about oxygen levels during surgery but also details about how the machine was functioning.¹⁵

Determine the ‘How’

Depending on the expert rules of your jurisdiction and the circumstances of your fire, a medical expert may be all you need to establish the fire’s cause. Airway fires, for example, follow a common pattern—an airway filled with high levels of oxygen is ignited by the surgeon’s electrocautery device—about which many anesthesiologists or ear, nose, and throat doctors are qualified to testify.

But to be safe, you should hire a fire cause-and-origin expert. Few will have specific experience in OR fires, but the science of fires is the same, and their fire-specific knowledge can assist your medical experts. Cause-and-origin experts will know with precision, for example, which items won’t burn except in the presence of oxygen or how long alcohol fumes take to dissipate.

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The fire may have been caused by using an electrocautery device in an oxygen-enriched environment, but you must find out why that happened.

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Search for the ‘Why’

Once you have the how, you must learn the why. Though the fire may have been caused by using an electrocautery device in an oxygen-enriched environment, you must find out why that happened. The answer is almost always inadequate training, so start with these questions:

1. Did the hospital require the entire perioperative team, particularly nonemployee doctors, to complete fire-prevention training? 
2. Was the hospital’s fire-prevention training comprehensive? Training should include identifying the fire triangle present in the case you’re handling, preventive steps, and active empowerment to communicate during surgery to eliminate these risks.¹⁶
3. How did the hospital evaluate the perioperative team’s fire-safety knowledge? Training is meaningless unless it changes behavior—it must be tested and evaluated.¹⁷

Ask for everything the hospital has created for fire prevention—not only specific policies and procedures but all material used in its fire-prevention training. This should include material such as posters and signs hung on walls near the OR. Be sure to also seek the manufacturer’s warnings on all prep solutions used, and include requests about how the perioperative team was informed of and trained on the warnings.

When deposing members of the perioperative team, ask about their fire-prevention knowledge and what fire-prevention training and testing the hospital required before they were granted privileges to work in the OR. Be sure to also depose the people responsible for fire-prevention training: Where did they get their training, and on what materials did they rely? Most hospitals have a person or department responsible for education and testing—start there.

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Was the inadequate training just a mistake, a lack of oversight, or did it reflect ingrained corporate indifference?

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Finally, depose management-level hospital employees, such as the CEO and the directors of the OR and nursing. Such decision-makers are especially helpful in building an institutional case. After they tell you that patient safety is their top priority, ask them to explain how that priority is met by not requiring their doctors to undergo fire-safety training. These questions aim to unearth the underlying motive: Was the inadequate training just a mistake, a lack of oversight, or did it reflect ingrained corporate indifference?

Keep in mind that the fire-safety

literature—including Joint Commission¹⁸ alerts directed specifically to hospitals—requiring perioperative teams to receive training in fire prevention is more than a decade old.¹⁹ What reason did the hospital have for not having such training in your case? Was their failure willful enough for a punitive claim? Ask the hospital how it handles Joint Commission and Medicare requirements generally,²⁰ but also ask specifically how they implemented the alerts and policies on OR fire prevention that were first issued in 2003.

At the time Dahlia’s scrub tech was considering the possibility of a fire, the flesh and bone of Dahlia’s nose, thumbs, and toes were burning, and her endotracheal tube was melting in her mouth. Shock and the sudden loss of oxygen put Dahlia into cardiac arrest before the fire was put out, leading to brain injury. Though she survived, Dahlia spent the second month of her life in a pediatric intensive care unit on a continuous morphine drip, and she now faces a life-long journey of plastic surgery and rehabilitation.

All of this was preventable. During Dahlia’s surgery, her nurses used an alcohol-based antibacterial solution to prep her surgical site but—despite the manufacturer’s warning—didn’t know that the solution took much longer to dry on a hairy baby like Dahlia. They then proceeded to drape her while the prep was still wet.

The infant’s anesthesiologist, who chose to use continuous enhanced-level oxygen during the surgery because Dahlia was born prematurely, declined to use a cuffed endotracheal tube because of concern about damaging her trachea. Dahlia’s head and mouth also were covered by the nurse’s draping, ensuring that the enriched oxygen would swirl freely around her along with the alcohol fumes. Dahlia’s surgeon preferred to use an electrocautery device instead of a scalpel to control bleeding.

Assessed independently, the use of an alcohol prep, enriched oxygen, uncuffed endotracheal tube, and an electrocautery device were all justifiable choices—but the team’s failure to recognize and eliminate the fire risk those components represented together was not. A simple fire-prevention time-out by a properly trained perioperative team is all that was needed to prevent her injuries.

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William A. Cirignani is a partner at Cirignani, Heller & Harman in Chicago. He can be reached at wac@chhlaw.com.

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Notes

1. See Ctrs. for Medicare & Medicaid Servs., Eliminating Serious, Preventable, and Costly Medical Errors—Never Events (May 15, 2006), www.cms.gov/Newsroom/MediaReleaseDatabase/Fact-sheets/2006-Fact-sheets-items/2006-05-18.html; see also John R. Clarke and Mark E. Bruley, Surgical Fires: Trends Associated With Prevention Efforts, Penn. Patient Safety Advisory 130 (2012), http://patientsafety.pa.gov/ADVISORIES/Pages/201212_130.aspx.
2. The enhancing effect of pure oxygen has to be seen to be understood. A 1947 video made by the U.S. Department of War shows it well: www.youtube.com/watch?v=unki1tMWHt8. 
3. The intensity of the fire will depend on the type of fuel and oxidizer present. If ignition occurs in room air with a fuel that is hard plastic—i.e., taking a match to an empty endotracheal tube—then the fire will almost assuredly be limited to charring and heat. 
4. The Joint Commission, Safety in the Operating Room 48 (2006).
5. V.A. Door, Fire Studies in Oxygen-Enriched Atmospheres, 1 J. Fire & Flammability 91 (1970).
6. Fuels like facial hair, linens, and breathing circuits may also overlap professional domains.
7. The amount of literature mandating fire-safety training for the entire perioperative team is both decades old and pervasive. You can download materials at our firm’s website at https://tinyurl.com/y9hezemh. 
8. The actual techniques are too many and too case-specific to list here but can be found in the safety literature referenced in the previous endnote.
9. Some states have developed ways around this obstacle, at least in medical cases. See, e.g., Gatlin v. Ruder, 560 N.E.2d 586 (Ill. 1990).
10. David A. Wenner, Juror Bias, in Litigating Tort Cases §35.19 (Roxanne B. Conlin & Gregory S. Cusimano eds. 2003).
11. See Rules Governing the Courts of the State of New Jersey, Rule 4:11-1, www.judiciary.state.nj.us/attorneys/assets/rules/r4-11.pdf. 

     

12. See Andersen v. Mack Trucks, Inc., 793 N.E.2d 962, 969 (Ill. App. Ct. 2003) (duty to preserve exists where defendant should reasonably foresee that evidence material to a potential case could be derived from the physical evidence in the defendant’s possession). 
13. Keep in mind that it may still be too late to do anything by the time you get in involved in the case. The machine was almost assuredly used in a surgery shortly after the fire.
14. See Am. Soc. of Anesthesiologists, ASA Recommendations for Pre-Anesthesia Checkout Design Guidelines (2008), www.asahq.org/resources/clinical-information/2008-asa-recommendations-for-pre-anesthesia-checkout.
15. If you still suspect malfunctioning anesthesia equipment, or that equipment failure will be the primary defense, then an immediate inspection by an expert is probably in order. For this, you’ll need an expert in anesthesia machines. Many medical schools have departments devoted to research regarding anesthesia machines and their function. Professors from these departments can tell if any part of the machine was malfunctioning, such as the gauges.
16. See, e.g., Ass’n of periOperative Registered Nurses, AORN Guidance Statement: Fire Prevention in the Operating Room, in 2005 Standards, Recommended Practices, and Guidelines 143 (2005). 
17. Id.
18. The Joint Commission is an independent, nonprofit organization that sets hospital safety standards and accredits and certifies health care organizations that meet them. Almost all major hospitals desire and seek accreditation. Its standards on safety are largely viewed as authoritative.
19. See The Joint Commission, Sentinel Event Alert, Issue 29: Preventing Surgical Fires (June 24, 2003), www.jointcommission.org/sentinel_event_alert_issue_29_preventing_surgical_fires/.
20. See generally 42 C.F.R. §482.41 (2016).