Medical Sales Reps in O.R.: Fiduciary Duties, Coverage and Hippocrates.

   In the last Century I had my first colonoscopy.  It happened here in Florida, where I live, but it could have happened anywhere, of course.   A sales rep wanted to watch.  My physician asked me if the rep could stay in the room and observe the colonoscopy procedure.  I was slowly drifting off into the land of nod, but well before the anesthetic took full effect I asked if the gentleman was necessary to the procedure and if he was a physician.  The answer from my doctor was "no" on both counts.  I then lifted myself up on one side from the gurney where I was being prepped and, speaking directly to the sales rep, said in as polite a tone as ever came from my mouth, "In that case, no offense but no."

   My doctor expressed surprise.  Nonetheless, so far as I know my wishes were honored.  (By the time the colonoscopy actually started, I was under the spell of the anesthetic, after all.)

    According to a recent newspaper report, patients do not always get a choice.  It appears that patients in many cases may not have a clue, but medical sales reps are in Operating Rooms more often than you might think.  Not just in Florida, but all across the nation.  In fact, they are in the O.R. a lot, instructing the surgeon on how to use the equipment they just sold to her or to him, or to the  hospital in which the O.R. is located.  See David S. Hilzenrath, "Medical Sales Reps Work Alongside Doctors, Even in Operating Rooms" (Washington Post Online, Sunday, December 27, 2009).

   This raises many interesting questions, among them:

   If something goes wrong and the sales rep is blamed in part for the wrong, or becomes a defendant, whose Liability Insurance Coverage responds?  The Hospital's?  The physician's?  The employer's?  The sales rep's individual coverage if any?  All or one or more of these?

   Does the patient have any Insurance Coverage for harm allegedly done by the sales rep under such circumstances?  If so, against whom does the patient's Insurance Company have subrogation rights?

   Is there a Fiduciary Duty to obtain the patient's informed consent to the sales rep's presence in the O.R. during the patient's surgery?  To the sales rep's participation in the surgical procedure? 

   Does the surgeon have a Fiduciary or other Duty to disclose to the patient that the surgeon lacks the necessary competence to operate the machine that the sales rep is there to oversee?

   These are undoubtedly only a few of the questions to ask about this previously unknown, and apparently hidden practice of allowing, even demanding, the presence in an Operating Room during surgery of a sales representative who has just sold a machine that only the sales rep supposedly can operate.

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Comments

[Manuel]

It's the hardest part of being a sales rep. But the patient's life is much more important.
Manuel@Insurance Agent Forum

[L Glavish]

I would have said "no" also- but I was not asked. Instead the information that a rep may be present was buried in the fine print of the consent form that I was required to sign while I was getting hooked up to an iv in pre op for abdominal surgery. I don't think that was right by any stretch of the imagination.