June 1998 Bulletin

No defense for wrong-site surgery

Claiming procedure would have been necessary eventually and blaming others doesn't work

By David A. Levy

A successful legal defense to surgery performed on the incorrect limb is almost impossible. In addition to being a breach of standard of care, it is also a "battery." Since it is against the law to touch someone without his consent, a patient who has consented to surgery on one knee, but instead has surgery performed on the opposite knee, has not consented to the wrong operation.

As a practical matter, there are two possible defenses, and neither one works terribly well in practice. The first is that the surgeon actually helped the patient, who may have needed the surgery on the opposite limb eventually anyway. The second defense is that the surgeon relied on someone else to prepare the proper operative site. As two recent cases show, the surgeon was required to settle despite his explanations.

COMPUTERS DON'T KNOW

A gentleman in his 70s slipped and twisted his left knee. He was referred from his primary physician (where he complained of left knee pain) to his orthopaedist, where he also complained of left knee pain. However, the orthopaedist noted the chief complaint "post-injury with twist to right knee x six weeks." He entered this into the word processor, and he punched up the chief complaint for every subsequent visit over the next six months.

When the patient did not improve with conservative measures, the orthopaedist sent him for an MRI of the right (which was actually the wrong) knee. The MRI revealed a tear of the posterior horn of the right medial meniscus and tear of the right ACL. (The patient obviously had pathology bilaterally.) When the patient came to sign the operative permit, he noted that it read "arthroscopic medial meniscectomy right knee." The patient caught the error, crossed out the word "right" and wrote the word "left" on the consent, and initialed it. In a bizarre circumstance of fate, the patient's initials were "O.K."

Unfortunately, because the surgery had been scheduled in the O.R. for right knee arthroscopy, the nurse prepared the right knee for surgery. The doctor looked at his chart and the MRI scan, both of which indicated the problem on the right knee, and started the procedure. He had some concern prior to actually cutting into the medial meniscus, and looked at the operative consent, which further increased the confusion. He then looked at the chart, and saw that the primary care physician had made the referral for left knee pain. The surgeon looked through the arthroscope, and found the pathology that had been revealed in the MRI scan. Accordingly, he made the decision to do the arthroscopy on the right knee, because he believed the patient would need it eventually anyway. The surgery was technically done well.

When the patient woke up he was quite angry, followed up with a different physician and filed suit.

The orthopaedist's defense that plaintiff would have needed right knee arthroscopy in the future anyhow, and that it was done technically well were no defenses to the claim for negligence and battery.

THE INDELIBLE "X"

In another case, a 20 year-old girl fell and injured both her ankles while hiking in the mountains. She was treated conservatively for several months, and a lidocaine injection did not ease her left ankle complaints. Her surgeon recommended, and she agreed to "arthroscopy debridement left ankle with laser."

The hospital had a procedure in place to prevent wrong limb surgeries; the patient marks the limb to be operated on with a black magic marker. The patient made an "X" above her left ankle. The patient also was given a copy of the surgical consent, which indicated that the procedure to be performed was arthroscopy debridement on the left ankle.

For reasons that will never be known, the left ankle was completely covered (including the black "X"), the right ankle was prepped, and the surgeon placed the instrumentation into the right ankle and debrided it. The nurse also altered the original copy of the operative consent, crossing out the word "left" and writing in the word "right." (The nurse was terminated from her employment.)

When the patient awoke, she saw her right ankle bandaged. She asked the orthopaedist to operate on the left ankle immediately, but he declined.

She sued the hospital (for the misconduct of the nurse), the orthopaedist and the anesthesiologist.

The case ultimately was settled, with the hospital paying approximately 80 percent of the settlement, and the orthopaedic surgeon and anesthesiologist each contributing to the settlement.

The best solution seems to be personal contact between the surgeon and the patient regarding the specific operation and operative site, prior to the patient being anesthetized.

David A. Levy is an attorney in San Mateo, Calif. specializing in defense of medical malpractice cases


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