Court Case: TEE, Surgeons and Defamation

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An interesting Fourth Circuit federal appellate opinion from last week that revolves around a defamation case filed by a former cardiothoracic surgery fellow against her attending.

I was going to write a summary, but it is probably just as quick to read the facts from the opinion. It may be of interest here because it revolves around a TEE done by a cardiac anesthesiologist, but he does not appear to be directly involved in the defamation case or the underlying malpractice suit.

Opinion

Or if you want the summary from last week's "Short Circuit" from the "Reason" website:

  • If there's anyone who loves precision in English usage, it's Bryan Garner. But if there's anyone else, it's your Short Circuit editors. So kudos to this Fourth Circuit panel for holding that the statement that a doctor "misread" a test result could be defamatory when all agree that she actually did not read the test result (and might have been medically justified in not doing so). SNOOTs of the world, unite!

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AI can be loading condition dependent. I wonder what the patient's BP was at the time of sedation TEE vs. intraop TEE. Very well could've been hypertensive under light sedation which would make AI worse than it really is vs. hypotension intraop which would make AI look better than it really is.
 
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An interesting Fourth Circuit federal appellate opinion from last week that revolves around a defamation case filed by a former cardiothoracic surgery fellow against her attending.

I was going to write a summary, but it is probably just as quick to read the facts from the opinion. It may be of interest here because it revolves around a TEE done by a cardiac anesthesiologist, but he does not appear to be directly involved in the defamation case or the underlying malpractice suit.

Opinion

Or if you want the summary from last week's "Short Circuit" from the "Reason" website:
Absolutely absurd sequence of events. Like one would think that the anesthesiologist and two surgeons had never worked with each other until that day. That's how bad the communication (or knowing each others' routines) was. I do find fault with neither surgeon reviewing the echo, though. They might not be echo experts, but they should be looking at the images of the echo and/or cath for every patient routinely.

With regard to the AI, there is no way in a million years I would let them stop the operation just because the severity appeared to be (a solid) moderate under general anesthesia. Contractility, preload, afterload etc are markedly altered compared to the awake state.
 
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That’s crazy. The attending physician Williams should be ashamed of himself. He lied about seeing the pre-op TEE which would have changed the entirety of the case and then went to throw the fellow under the bus. In the case of the intraoperative TEE I can totally see how the results would be glossed over because the reason the patient is on the table is because they already had a pre-op TEE and severe AI has already been established. In regards to the anesthesiologist, it customary to report moderate AI if visualized intraop or is it just assumed that the surgeons know what the TEE says and are proceeding accordingly?
 
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That’s crazy. The attending physician Williams should be ashamed of himself. He lied about seeing the pre-op TEE which would have changed the entirety of the case. I can totally see how a intraoperative TEE would be glossed over because the reason they are on the table is because severe AI has already been established. In the case of the anesthesiologist and the intraoperative TEE, is it customary to report moderate AI or is it just assumed that the surgeons know what the TEE says and are proceeding accordingly?
To be fair, he was the one who moved for summary judgement.

This means at this stage, the court is taking everything in the light most favorable to the plaintiff; so this is her story, not necessarily the actual facts. He probably has a completely different story, which may or may not be the truth.
 
To be fair, he was the one who moved for summary judgement.

This means at this stage, the court is taking everything in the light most favorable to the plaintiff; so this is her story, not necessarily the actual facts. He probably has a completely different story, which may or may not be the truth.
I understand, but tell me that doesn’t seem likely. I truly believe the fellow when she says that the attending looked at the pre-op TEE and said not to worry about it. His diagnosis of AI was made prior to the imaging and the imaging would have only confirmed it, so is it that unreasonable to believe a surgeon would just brush that off and say let’s go do this surgery. Also, it is customary for fellows to begin procedures before attending arrive so I also believe you this. The only other fault in this case would possibly lie on the anesthesiologist for not reporting the intraop TEE findings or on the fellow/attending for not discovering what the intraop TEE findings were before the surgery began. But I still don’t think we can gloss over this pre-op thing…
 
I understand, but tell me that doesn’t seem likely. I truly believe the fellow when she says that the attending looked at the pre-op TEE and not to worry about it. His diagnosis of AI was made prior to the imaging and the imaging would have only confirmed it, so is it that unreasonable to believe a surgeon would just brush that off and say let’s go do this surgery. Also, it is customary for fellows to begin procedures before attending arrive so I also believe you this. The only other fault in this case would possibly lie on the anesthesiologist for not reporting the intraop TEE findings or on the fellow/attending for not discovering what the intraop TEE findings were before the surgery began. But I still don’t think we can gloss over this pre-op thing…
I am not necessarily disagreeing with you. Something crazy obviously happened.

My point is that for this opinion the courts resolve every dispute in her favor. (Then, if they do that, and she still can't win, there is no point in bringing in a jury.)
 
One other document from the case that has some additional details:

Trial Court Order

There is one line from this that I believe is interesting:

According to plaintiff, although she is a well-trained and experienced physician, her role as a fellow in the East Carolina Heart Institute was that of a trainee in a graduate health professions education program. Plaintiff was authorized to perform clinical duties and responsibilities within the context of the graduate educational program and thus, could not and did not, perform clinical duties without the direction and supervision of attending physicians.

East Carolina does not appear to offer sub-sub-speciality training programs, and she has a pretty stellar academic record. Mayo (MN) surgical residency, UW CT fellowship, with what appears to be an additional fellowship at Boston Children's and an attending position at Brigham & Womens. This also does not appear on her Linkedin and bio pages. (It is possible that there are two female CT surgeons with the exact same name in the U.S., but I have not been able to find another one.)

So unless there is some major mixup, this was not the typical "fellow." This was a very experienced CT surgeon, which you think could be relevant.
 
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The judgment makes it seem like moderate vs severe ai is a black and white thing. There are at least 6 ways to grade AI. A lot of times the different methods don't agree with each other. If you are cancelling a valve because of intraop TEE you need to have a discussion with the referring cardiologist and surgeon and also review the preop images. Don't think any of that happened here.
 
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Is it the responsibility of the cardiac Anesthesiologist to confirm the severity of the AI? Does it matter if it looks moderate today, at this moment, under anesthesia? They had a cardiologist diagnose them and a CV surgeon evaluate them and offer them surgery. I would think the only reason to raise a stop sign would be if there was something completely different discovered in the OR. When I did CV and Peds CV long ago they weren’t using our analysis for any pre planning. In fact the peds CV cases had a peds cardiologist come in and read it pre intervention and post. Though they didn’t hold up the sternotomy for the exam.
 
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Bizarre case— makes me wonder if in fact the AI was in fact more on the ‘mild’ side of moderate.

Predictable take-aways: the surgeon is never at fault, and the hospital’s risk management is NOT your friend.
 
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If the diagnosis has been made and surgery planned by a cardiologist and surgeon, I don’t even bother saving any images that could argue that the diagnosis is in question. The OR under anesthesia isn’t the place to be deciding if a valve lesion is severe and symptomatic .

Exceptions are when the surgeon has a question about something that wasn’t fully evaluated but that’s not too common
 
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I understand, but tell me that doesn’t seem likely. I truly believe the fellow when she says that the attending looked at the pre-op TEE and said not to worry about it. His diagnosis of AI was made prior to the imaging and the imaging would have only confirmed it, so is it that unreasonable to believe a surgeon would just brush that off and say let’s go do this surgery. Also, it is customary for fellows to begin procedures before attending arrive so I also believe you this. The only other fault in this case would possibly lie on the anesthesiologist for not reporting the intraop TEE findings or on the fellow/attending for not discovering what the intraop TEE findings were before the surgery began. But I still don’t think we can gloss over this pre-op thing…

Can't see how the anwsthesiologist would have any fault here. Intraop TEE is for monitoring purposes. If the surgeon was truly in need of TEE data to make a decision to proceed vs abort the case they wouldn't have made incision prior to the read.
 
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Can't see how the anwsthesiologist would have any fault here. Intraop TEE is for monitoring purposes. If the surgeon was truly in need of TEE data to make a decision to proceed vs abort the case they wouldn't have made incision prior to the read.
I disagree with this. It is not only for monitoring but guidance as well/assessment of repairs. Also used to validate what you are doing and if there are any other findings.

I cx a case that was brought down for type A dissection. Nothing could be found on tee before sternotomy. Ended up being an artifact on CT. Packed up the patient and sent her back to her room.
4 mitral clips today… guidance all day long.

While monitoring is fundamental to tee we def do more than that.
 
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I wonder how this case was billed. Monitoring vs full assessment (paid differently)
 
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It would seem that this case more focuses on whether the statements made by the supervising surgeon would be constituted as "defamatory" rather than whether actual malpractice or negligence occurred, but honestly, I'm more interested in the debate regarding the latter than the former. I can only speak from personal experience, but I've not known cardiothoracic surgeons to make their own judgment calls as to whether they believe the interpretation of the physician performing the imaging study; that is, I've not known them to be assume full responsibility of the imaging interpretation leading to the procedure being done. If there is a formal report, you kind of have to take it at face value, or if there is any question, at least show it to someone else to see what they think, and, if necessary, repeat the study. To me, saying the surgeon "misinterpreted the echo findings" would be the equivalent of an emergency physician getting dinged for not recognizing a PE on a CT scan when the radiologist read the CT as "no PE." Who bears responsibility for that?

Second, who is the onus on regarding reporting and acting on intraoperative TEE findings? Should the surgeon have to ask for them, or should the physician performing the TEE mention beforehand what they see? I agree that it would be exceedingly rare for the surgeon to wait until there is a formal report in the chart before cut-time, not to mention if everyone is standing around scrubbed in, who's going to be refreshing the chart looking for a report? Personally, I mention what I see to the surgeon and, if possible, try to show them what I'm looking at so that we both have a visual idea of what I'm trying to describe; I don't just walk out of the room without giving them the rundown of what I saw, and certainly not if I saw something different than what the preoperative imaging showed/reported, especially if it would mean the difference between whether the surgery should be performed or not.

Third, as others have pointed out, aortic regurgitation severity can be a dynamic process, so the fact that it was reported as "moderate" intraoperatively doesn't automatically pre-suppose that the preoperative imaging was incorrectly reported as "severe" (and vice versa). At what point did they make the decision to abort? Based on the face-value findings of the cardiac anesthesiologist? Did they bring another party into the operating room to confirm that it was only moderate severity? I'm not even going to weigh in on the comment in the court report about aortic valve replacement being "only for severe aortic regurgitation."

Ultimately, in my opinion, it isn't exactly clear that malpractice or negligence occurred based on what we know from the court report, but the prevailing air of poor/incomplete communication between all involved certainly doesn't paint the medical staff in the best light.
 
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I cx a case that was brought down for type A dissection. Nothing could be found on tee before sternotomy. Ended up being an artifact on CT.

Have had exactly the same experience.

Over the years we’ve had more than a few cancelled mitral repairs postinduction because even with provocative maneuvers, we couldn’t get the MR to look bad.
 
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Have had exactly the same experience.

Over the years we’ve had more than a few cancelled mitral repairs postinduction because even with provocative maneuvers, we couldn’t get the MR to look bad.

Did u tell the surgeon to stop? Or did they wait til you did the read before starting surgery. Seems like in this specific case referenced by OP the surgeons felt very comfortable with the diagnoses and decision to proceed that the TEE result wasn't felt necessary prior to doing a sternotomy
 
I disagree with this. It is not only for monitoring but guidance as well/assessment of repairs. Also used to validate what you are doing and if there are any other findings.

I cx a case that was brought down for type A dissection. Nothing could be found on tee before sternotomy. Ended up being an artifact on CT. Packed up the patient and sent her back to her room.
4 mitral clips today… guidance all day long.

While monitoring is fundamental to tee we def do more than that.

So the standard should be to not do sternotomy before the TEE is read. So should the anesthesiologist be held at fault? Or the surgeon who decided to do the sternotomy without getting a read first?
 
This boils down to an attending surgeon not being in the operating room when he is supposed to be. It would not be difficult to prove negligence on his part. He didn't review the echo. He wasn't in the OR when critical aspects of the surgery were happening. You shouldn't rely on a trainee to make these types of decisions. I am surprised the patient hasn't gone after him. I'd be pissed too if I woke up to an unnecessary sternotomy and my symptoms haven't changed. He clearly knew he was in the wrong and threw his trainee under the bus in front of the patient/family. Weak.
 
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So the standard should be to not do sternotomy before the TEE is read. So should the anesthesiologist be held at fault? Or the surgeon who decided to do the sternotomy without getting a read first?
Our CT surgeons come and discuss intraop tee before scrubbing most of the time. Def. b4 sternotomy. Sometimes we call double valves based on intraop tee.
 
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Did u tell the surgeon to stop? Or did they wait til you did the read before starting surgery. Seems like in this specific case referenced by OP the surgeons felt very comfortable with the diagnoses and decision to proceed that the TEE result wasn't felt necessary prior to doing a sternotomy


That’s not standard where I work.


The first thing our main surgeon says when he walks into the room is “hello everybody”. The second thing he always says is “How’s the echo?”

Our other surgeon always asks , “any surprises?” referring to the echo.

Both of them do this even for CABGs. We have big slave monitors on the wall to give them a guided tour.

The aortic dissection we cancelled was with a 3rd surgeon who doesn’t come to our hospital much but occasionally covers on weekends. I asked him to come into the room when I couldn’t find anything.
 
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So the standard should be to not do sternotomy before the TEE is read. So should the anesthesiologist be held at fault? Or the surgeon who decided to do the sternotomy without getting a read first?
I can’t remember ever having the chest open before I’ve at least had an opportunity to look at the lesion(s) in question for the case. Maybe not a complete exam, but definitely the things we NEED to know to get underway.
 
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So the standard should be to not do sternotomy before the TEE is read. So should the anesthesiologist be held at fault? Or the surgeon who decided to do the sternotomy without getting a read first?
I won't speak for literally all cardiac ORs, but in the vast, vast majority of cases I've seen there's time to do a quick exam to at least confirm the finding for which the patient is coming for surgery. The probe is usually placed right after induction and the patient still has to get a foley, get prepped, draped, timeout, etc. That's why it's so crazy to me that it could get past the sternotomy before everyone decides to cancel for "moderate" disease
 
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I think the report mentions that the anesthesiologist left the room before reporting the echo findings to the attending surgeon. I’m assuming this is a care team model which is where the lapse in communication probably occurred when neither staff anesthesiologist nor staff surgeon were in the room at the same time.

We solo all of our cardiac stuff. I usually do a quick exam before incision and, agree with others, our surgeons (who are expeditious) will invariably ask how the TEE is before scrubbing in. I also report echo findings during time out if it hadn’t been discussed before.

We’ve cancelled/woken up patients due to unanticipated findings on echo. Also agree with others that loading conditions/GETA significantly affect how valves look on TEE. If we’re thinking about cancelling a case, I’m usually getting a second set of [qualified] eyes on the TEE, and we discuss findings before anyone cuts skin.

Not placing blame on anyone here, but I would never rely on cardiac surgeons let alone a fellow to interpret TEE findings. That’s why we’re there. I think this case boils down to a failure to communicate significant findings prior to incision and a surgeon who wanted to blame anyone other than himself. Unfortunate for the former fellow.
 
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I think the report mentions that the anesthesiologist left the room before reporting the echo findings to the attending surgeon. I’m assuming this is a care team model which is where the lapse in communication probably occurred when neither staff anesthesiologist nor staff surgeon were in the room at the same time.

We solo all of our cardiac stuff. I usually do a quick exam before incision and, agree with others, our surgeons (who are expeditious) will invariably ask how the TEE is before scrubbing in. I also report echo findings during time out if it hadn’t been discussed before.

We’ve cancelled/woken up patients due to unanticipated findings on echo. Also agree with others that loading conditions/GETA significantly affect how valves look on TEE. If we’re thinking about cancelling a case, I’m usually getting a second set of [qualified] eyes on the TEE, and we discuss findings before anyone cuts skin.

Not placing blame on anyone here, but I would never rely on cardiac surgeons let alone a fellow to interpret TEE findings. That’s why we’re there. I think this case boils down to a failure to communicate significant findings prior to incision and a surgeon who wanted to blame anyone other than himself. Unfortunate for the former fellow.

Agree. I would not like the pressure of starting x amount of rooms under an ACT model while doing a comprehensive tee before a cardiac case. I think it’s distracting and may create issues like in this case. We often find important pathology on our exams that was not previously discussed on a pre-op TTE. Patients deserve a full exam that minimally includes looking at the septum, transgastric views (ef, effusion, rwma), pleural effusions, LAA for clots, pulm/hepatic veins, as well as precise location and mechanism of valvular pathologies.

I would not want to be distracted because I am heading to another room to start a case.
 
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I found some more info that claims the fellow wasn’t even alone when performing the sternotomy. I hope she prevails as it really does sound like she was thrown under the bus.
 
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If the diagnosis has been made and surgery planned by a cardiologist and surgeon, I don’t even bother saving any images that could argue that the diagnosis is in question. The OR under anesthesia isn’t the place to be deciding if a valve lesion is severe and symptomatic .

Exceptions are when the surgeon has a question about something that wasn’t fully evaluated but that’s not too common
That may not be the most sensible approach. Deliberately not saving images can miss things later that may be important. And also may raise questions about why you are not saving images. I wouldn't do this
 
So the standard should be to not do sternotomy before the TEE is read. So should the anesthesiologist be held at fault? Or the surgeon who decided to do the sternotomy without getting a read first?
Absolutely not, but as experts in our field we should be able to identify key features for each case and quickly snap them and pass on that info. And find red herrings that may alter the plan...

I drop the probe after the ET and before the swan. So i use the excuse of using the tee to guide the swan and the ijv wire to get my probe down and for sure im looking at that aov really quick... and a quick 4ch. I need to see the el khoury mechanism, severity but not so much, dilated crappy lv, ao root. Is this repairable or replacement....


But im definitely not telling them to cancel the case based on a study done under ga. I will never do that. Not my role. Or im gonna blast in a lot of phenyl to recreate physiological conditions to some degree to assess it
 
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That may not be the most sensible approach. Deliberately not saving images can miss things later that may be important. And also may raise questions about why you are not saving images. I wouldn't do this

Yeah I wouldn't do it either no assuming you're billing 93312. Part of the 93312 CPT is image acquisition and interpretation. Would look quite bizarre if you had a billing audit on say an AVR for AS (which very frequently can be appear "moderate" due to GA and imperfect insonation angles from the transgastric views) and your study didn't contain of any 2d images, CW Doppler, or measurements of the aortic valve.
 
Bill 93312 for a comprehensive post procedure TEE. I don’t reassess severity for the primary indication in a valve unless the surgeon wants me to (they never do)
 
I had a case many years back where a patient was booked for an AVR for AI. Dropped the TEE probe and saw SAM and HOCM. Showed the surgeon and canceled the surgery... unfortunately we had given 10 of pancuronium.....
 
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A partner of mine was doing an AVR for severe AS. Only had the read of the echo from the outside facility. Dropped the probe... widely open aortic valve with no sign of ANY stenosis or AI. No intracavitary gradient, no SAM, norhing. The best we could determine was that the outside echo had the doppler very misaligned, and read the MR jet. Here, there's generally enough time between probe insertion and incision to get a full exam, so the case was canceled prior to incision.
 
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A partner of mine was doing an AVR for severe AS. Only had the read of the echo from the outside facility. Dropped the probe... widely open aortic valve with no sign of ANY stenosis or AI. No intracavitary gradient, no SAM, norhing. The best we could determine was that the outside echo had the doppler very misaligned, and read the MR jet. Here, there's generally enough time between probe insertion and incision to get a full exam, so the case was canceled prior to incision.

Same happened to one of my partners. Except it was a dissection. They woke her up, took out the lines, and sent her home.
 
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I had a case many years back where a patient was booked for an AVR for AI. Dropped the TEE probe and saw SAM and HOCM. Showed the surgeon and canceled the surgery... unfortunately we had given 10 of pancuronium.....


Fortunately the patient did not wake up with sternal cables.
 
I had this person come to the OR recently with a pre-op cards TEE that said no AI





Recording 2023-02-13 at 20.40.02.gif
 
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Our CT surgeons come and discuss intraop tee before scrubbing most of the time. Def. b4 sternotomy. Sometimes we call double valves based on intraop tee.
I envy you... Our surgeons here don't give a rats ass about intra-op echo findings. They think they can interpret the echo better than us, and when in question, will ask for cardiologists to come into the OR. It is truly soul crushing.
 
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I envy you... Our surgeons here don't give a rats ass about intra-op echo findings. They think they can interpret the echo better than us, and when in question, will ask for cardiologists to come into the OR. It is truly soul crushing.
Are you in PP or academics?
 
I envy you... Our surgeons here don't give a rats ass about intra-op echo findings. They think they can interpret the echo better than us, and when in question, will ask for cardiologists to come into the OR. It is truly soul crushing.
I’d look for a new job if you’re fellowship trained buddy. Our surgeons don’t necessarily want us reassessing severity for the primary indication (unless something is obviously way off) but they very much respect our opinions and diagnostic skills .
 
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Are you in PP or academics?
I’d look for a new job if you’re fellowship trained buddy. Our surgeons don’t necessarily want us reassessing severity for the primary indication (unless something is obviously way off) but they very much respect our opinions and diagnostic skills .
Unfortunately, I am stuck to this area. The compensation, work life balance, and the actual day to day work are quite good, which keeps me sane. For every cardiac case, I approach it as if surgeon cares about my echo findings to keep my skills up. Once I am no longer geographically limited, I will start looking for a different job.
 
I don't think it's gonna look good to continue this practice in the future

Great article. Totally agree. Something I found interesting was the part about significantly increased rate of unplanned valve procedures. This suggests that finding previously unknown valvulopathies and intervening on them under the same anesthetic without discussing with the patient must be common. And given that they view that as a reason to support use of TEE in isolated CABG suggests they support that practice (assuming the procedure is actually indicated).

I had a case many years back where a patient was booked for an AVR for AI. Dropped the TEE probe and saw SAM and HOCM. Showed the surgeon and canceled the surgery... unfortunately we had given 10 of pancuronium.....

Which makes me wonder about this case. I found this a couple times and my surgeon just added a septal myectomy to the procedure.

I had this person come to the OR recently with a pre-op cards TEE that said no AI


View attachment 366126

And this one. Please tell me they replaced that valve. Mine would/should, I can see the VC is at least 7mm on my phone.
 
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I envy you... Our surgeons here don't give a rats ass about intra-op echo findings. They think they can interpret the echo better than us, and when in question, will ask for cardiologists to come into the OR. It is truly soul crushing.
Yeah thats literally a joke.

Our cards literally cannot believe the quality of our images each and every time we review... they think we have a secret stash of x10s or some unreleased tech...

Our studies, patients, goals for a tee are like from different planets... i greatly respect their studies but they are almost 2 different investigations
 
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We don’t even put the echo in for normal EF cabg
Our practice is that for every cardiac case, regardless of severity… they get an echo.
Even a single vessel cabg. We find and document so much more on routine echo’s. I am sure anyone who has done cardiac long enough will agree with this.
 
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Did an AVR/MVR/CABGx3 last week.
Echo added so much information to that case- it would have been criminal not to discuss the pre, intra and post-op findings.
 
I had this person come to the OR recently with a pre-op cards TEE that said no AI





View attachment 366126


Similarly I have had patients show up to surgery after medical management of functional MR. Torrential preop MR to trace/mild. This always prompts discussion on what to do.
 
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