08202017Headline:

Legal Examiner Voices

Home

Email Mark Bello Mark Bello on LinkedIn Mark Bello on Twitter Mark Bello on Facebook Mark Bello on Avvo
Mark Bello
Mark Bello
Attorney • (877) 377-7848

Wrong Site Surgery: Why Does This Continue to Happen?

6 comments

Wrong Site Surgery is one of the most devastating events related to Patient Safety. It has serious consequences for both the patient and the surgeon. Recent industry statistics show that wrong site surgery events account for 13% of reported medical mistakes. The causes include emergency surgery, unusual time pressures to start or complete a procedure, and involvement of multiple surgeons or procedures during a surgical event.

Not only is the general public is becoming aware of these incidents because they are usually high profile, but also because they are the subject of comedy routines. An example of this is found here. Tom Shllue is a comedian who has captured the anxiety of this error in his routine “Wrong Side Surgery”; the statistics he uses were published in Current Surgery Vol 61 No 5 Sept/Oct 2004. The full routine concludes with Tom asking: “So you’re telling me that one of my testicles is bad… and you now have the GOOD ONE???”

In May 2003, the Joint Commission, a non-profit patient assistance organization, introduced the Universal Protocol for preventing wrong site or wrong procedure/wrong person surgery. This protocol was supported by the American Medical Association and the American Hospital Association, among 30 + professional groups.

The Universal Protocol includes three parts.

1. Preoperative Verification

2. Marking of the Operative Site

3. Time out immediately before starting the procedure

Despite these multiple checks, balances and protocols, wrong site surgeries continue to happen. A few months back, I posted about a Rhode Island Hospital where three different brain surgeons operated on the wrong parts of the heads of three different patients. Fortunately, none of these wrong site surgeries resulted in a fatality. Unfortunately, this was not the case for Deborah Blankenship, 49 of Flat Rock, Michigan.

Here is what the recent lawsuit filed on behalf of Ms. Blankenship’s estate alleges: She arrived at Oakwood Hospital on August 7, 2007 suffering from a severe headache. She was diagnosed with an acute leak from an artery in her brain. When radiologist, Dr. Hasnain Haider-Shah performed surgery, but could not stop the bleeding, Ms. Blankenship was rushed into a second surgery where neurosurgeon, Dr. Robert R. Johnson would perform an emergency craniotomy cutting open her skull to reach the site of the aneurysm. It wasn’t until after Dr. Johnson opened the right side of her brain that it was discovered he was preparing to operate on the wrong side. When the error was discovered, Dr. Johnson immediately operated on the left side of the brain, but time was too critical. This medical error caused severe brain damage, and Ms. Blankenship died December 8, 2008.

The wrongful death lawsuit was filed by prominent Michigan attorney, Brian McKeen, against Oakwood Hospital and Drs. Johnson and Haider-Shah. What happened to safety protocol? What happened to checks and balances? When will we see the end of errors like these? There is no records of licensing or disciplinary action against Dr. Johnson or Dr. Haider-Shah. What measures are in place to assist the victims of tragedies like that of Ms. Blankenship?

This is another example of why tort reform is a bad idea for American patients. Tort Reform, argued as necessary to stop so-called "frivolous" lawsuits, usually takes the form of a damage cap on serious verdicts for serious injuries or fatalities at unreasonably low numbers. It does nothing to prevent frivolous lawsuits; it does nothing to improve safety in the operating room. What it will do is further encourage those responsible for committing medical mistakes to be less responsible. Why? Because it creates a legal system in which there are little or no consequence for mistakes made. Physicians receive a "free pass" or "get out of jail free" card, and insurance companies receive a financial windfall (collecting substantial premiums and paying out little in benefits) and the public takes the financial hit by assuming the burden of the wrongdoers in the form of increased taxes.

The Blankenship case is yet another wake-up call to those who favor caps on recoveries in serious injury and death cases. Full and fair compensation is an important method of deterring the negligence of doctors and hospitals. Doctors and hospitals should be held accountable for inadequate care and medical wrongdoing. Who speaks for the victim? It is time we address the real problem – preventable medical errors. How is the system improved by punishing victims and their families instead of the perpetrators?

Michigan is an example of a tort reformed state. The highly skilled Mr. McKeen must seek justice for the Blankenship family in a legal arena where access to justice is severely limited by tort reform. It is time for the Michigan Supreme Court and/or legislature to follow the lead of Illinois, where that state’s supreme court declared its tort reform caps to be unconstitutional.

Lawsuit Financial is a pro-justice lawsuit funding company. We provide pre-settlement lawsuit funding to victims of medical malpractice and many other types of accidental injury cases. As long as you are a plaintiff in a pending lawsuit and represented by an attorney, we can usually provide you with the immediate financial assistance you need. We hope that you will consider joining forces with us and other pro-justice organizations in putting an end to tort reform. Victims’ rights should count more than corporate rights; people should be a priority over profits. Dont wait until you or someone you love becomes a statistic.

6 Comments

Have an opinion about this post? Please consider leaving a comment or subscribing to the feed to have future articles delivered to your feed reader.

  1. up arrow

    Wrong site surgery should never happen.
    Wrong doctor litigation against innocent physicians should be uncommon events, not routine as as presently the case.

  2. Mark Bello says:
    up arrow

    Dr. Kirsch: Your response puzzles me. Reviewing the case in question, there is, clearly, wrong site surgery and the lawsuit was filed against the “right” doctors. If you have statistics to cite that suggest that the “wrong doctor” is often sued for wrong site surgery, please make your case. Nobody (doctor, victim or lawyer) benefits by suing the wrong doctor. Such incidents are the exception, not the rule, as your comment would suggest. Please explain yourself.

  3. Gerry McGill says:
    up arrow

    Although I am an InjuryBoard member, I do not handle plaintiffs’ medical malpractice cases. However, earlier in my career I represented hospitals and doctors in South East Florida in medical malpractice suits. I did see some suits where wrong doctors were initially named. Sometimes this was done by lawyers taking a “shotgun” approach which I agree should not be done. However, some were brought because the lawyers for the injured parties could not determine where to place the blame without significant discovery.
    At the time I was handling these cases the only means available for resolving them was through negotiation or litigation. Now there is a far better method: mediation. Mediation is a process of alternate dispute resolution where both sides sit down with a neutral mediator and discuss the case, both in a joint session and in separate caucus sessions with the individual parties. In some cases parties can demonstrate that they should not be involved in the case and therefor should be dismissed.
    In many states no civil cases go to trial without first being sent to mediation. The problem is that the case has already been filed. To be most effective, mediation can and should be attempted early in the evaluation process. This would take a voluntary, pro-active process in which all parties agreed to get together with a mediator acceptable to all. The best thing about mediation is that all discussions are CONFIDENTIAL. No parties statements, settlement offers, apologies or any other communications can be used against them in any other type proceeding. This opportunity to exchange thoughts can be very powerful. To have a Hospital Administrator or a Doctor say “I am very sorry that the outcome of the procedure was so bad, but I don’t believe it was our fault.”, can go a long way to help the patient or family decide to see if there is some solution or resolution of the situation as an alternative to protracted, expensive, bitter litigation in which one side appears to win while the other loses, but in reality both sides usually lose in the end.

  4. Mark Bello says:
    up arrow

    Dr. Kirsch attempted to respond to my comment and could not access the system. He sent me a private email, instead, and asked me to share it. Here it is:

    Subject: Wrong Site Comment
    Body: Mark,

    Please add this comment to wrong site post. I tried but it wouldn’t ‘take’. Thanks. Michael

    Thanks Mark. A patients who suffers damages as a result of wrong site surgery is entitled to full legal relief. I did not mean to suggest that innocent physicians are sued who are alleged to have performed a ‘wrong site’ procedure. I would guess that this rarely occurs. Beyond rare wrong site events, innocent physicians like me are routinely sued, doctors who should not have become defendants in the first place. This was my point.

  5. Mark Bello says:
    up arrow

    Responding to Dr. Kirsch, again, there is absolutely no incentive for a plaintiff or an attorney to sue the “wrong” doctor. If you would like to make a case for that, I’d like to see some statistics where a lawyer continues to pursue the “wrong” doctor when the mistake is pointed out. As to your statement that “wrong site” surgery is rare, the statistics would suggest otherwise. Here is a sampling in Pennsylvania: http://www.hospitalreviewmagazine.com/news-and-analysis/current-statistics-and-lists/percentages-of-wrong-site-surgery-claims-paid-with-average-payments-by-specialty.html.

    I am not saying that the wrong doctor never gets sued; Gerry McGill makes the point well. I am saying that once a mistake is discovered, there is no incentive to pursue the wrong doc and my guess is that the vast majority of those mistakes are rectified shortly after they are discovered and proven to be mistakes.

  6. up arrow

    “my guess is that the vast majority of those mistakes are rectified shortly after they are discovered and proven to be mistakes.” This is not my experience. In too many cases, it takes too long for the attorney ‘discover’ that the physician is innocent. Similarly, we need a reasonable threshold to keep the innocent off the lawsuit. While anyone can argue that an attorney needs the discovery period to determine innocense, the determination can often be made by simply reviewing medical records. There is no reason why an MD should become a defendant if the medical record review reveals no reasonable basis to proceed with a case. I am not trying to protect incompetent or negligent physicians. I do not believe that caps are ideal. I argue for a better screen to separate out innocent practitioners.