Seyfarth Synopsis: Smoke produced during surgical procedures is carcinogenic and can carry pathogens. Employers who fail to abate surgical smoke hazards may face liability from employee injuries and OSHA citations.

Surgical smoke is created during numerous surgical and medical procedures. As NIOSH has explained, “during surgical procedures using a laser or electrosurgical unit, the thermal destruction of tissue creates a smoke byproduct. Research studies confirmed that this smoke plume can contain toxic gases and vapors such as benzene, hydrogen cyanide, and formaldehyde, bioaerosols, dead and live cellular material (including blood fragments), and viruses. At high concentrations the smoke causes ocular and upper respiratory tract irritation in health care personnel, and creates visual problems for the surgeon. The smoke has unpleasant odors and has been shown to have mutagenic potential.”

Sources report that surgical smoke has similar carcinogenic properties to cigarette smoke. The smoke vapors can also carry pathogens, such as infectious bacteria and viruses. Finally, dense surgical smoke can distract surgeons and staff, obscure a surgeon’s vision, and result in disruptive coughing while the surgeon is holding surgical instruments. Consequently, smoke can result in injuries and illnesses to the patient, physician, or operating room staff, including exposures to blood borne pathogens.

The hazards posed by surgical smoke can be abated through the use of a local exhaust ventilation (LEV) system — local suction or overhead exhaust — as well as through Personal Protective Equipment (PPE), in the form of antiviral surgical masks. However, there may be widespread underutilization of these abatements. NIOSH’s Health and Safety Practices Survey of Healthcare Workers, summarized in Secondhand Smoke in the Operating Room? Precautionary Practices Lacking for Surgical Smoke, Am. J. Ind. Med. (Nov. 2016), 59(11):1020-1031, reported that 4,533 survey respondents reported exposure to surgical smoke: “4,500 during electrosurgery; 1,392 during laser surgery procedures. Respondents were mainly nurses (56%) and anesthesiologists (21%). Only 14% of those exposed during electrosurgery reported local exhaust ventilation (LEV) was always used during these procedures, while 47% reported use during laser surgery. Those reporting LEV was always used were also more likely to report training and employer standard procedures addressing the hazards of surgical smoke. Few respondents reported use of respiratory protection.”

Numerous reports indicate that operating room personnel continue to demonstrate a lack of knowledge of these hazards and lack of compliance with recommendations for evacuating smoke during surgical procedures.

OSHA and Tort Liability

Under the OSH Act’s General Duty Clause, health care employers have a general duty to address recognized hazards with a feasible means of abatement. Federal OSHA announced an enforcement position on the issue of surgical smoke, explaining in a Standard Interpretation Letter that employers could be liable for unabated exposures to surgical smoke. Further, under OSHA state plans that require an Injury and Illness Prevention Plan (such as California and Washington State), employers are required to train employees on the hazards in their workplaces. States such as Rhode Island and Colorado have taken it a step further enacting “Surgical Smoke Evacuation Laws” which require facilities to adopt and implement policies that prevent human exposure to surgical smoke via the use of a surgical smoke evacuation systems. Accordingly, health care employers who fail to train perioperative personnel on abatements for surgical smoke face potential OSHA liabilities. Employees and patients who suffer from a cancer or infectious disease at the workplace could similarly bring worker’s compensation or, in limited circumstances, tort claims.

Accordingly, it is imperative that health care employers implement means and methods to control surgical smoke and provide appropriate training to employees on the issue. Failure to do so can result in significant legal liabilities.