Malpractice Liability in Surgeries Done to the Wrong-site of the Body

by | Published on Jul 13, 2016 | Medical Record Review

Wrong site surgery is one of the major reasons that give rise to medical malpractice cases, and this occurs when surgery is performed on the wrong site of the body. It is also when surgery is performed on the wrong patient or the surgical procedure itself is wrong. It has been found that wrong site surgery is the third highest ranking event for preventable medical errors and occurs in about 15% of preventable medical error instances, according to The Joint Commission (Joint Commission on the Accreditation of Healthcare Organizations). A medical malpractice case arises when the patient is exposed to more than minimal risk following any invasive procedure. In any medical malpractice case, the first step is a detailed medical records review to find out details regarding the various medical events. Any such case is to be reviewed for merit and causation. Since this can be a complicated task, and because these documents vary from one institution to another, attorneys often utilize medical review services for the same. The review can be done even before the attorney accepts a case; the service is a great option for attorneys who want information regarding the medical issues involved before pursuing a particular case.

A comprehensive review of the medical records will help to establish four main principles important for a case to have legal validity.

  • Breach of standard of care
  • Breach of duty
  • Proximate cause of damages
  • Damages

Wrong Site Surgery Claims Mostly Turn Out Favorable for the Plaintiff

It is estimated that around 85% of wrong site surgery claims result in settlements or verdicts in favor of the patient. For instance, a woman who had the wrong fallopian tube cut by a doctor during surgery that rendered her infertile was recently awarded $1.8 million by a jury in New London, as per a Connecticut Law Tribune story. The gynecologist who performed the surgery on the fallopian tube had only been practicing medicine for 18 months after her residency, at the time of the surgery.  She did not have much experience and the plaintiff’s lawyers were able to show that she cut the good fallopian tube on the left side as a result of which the plaintiff was rendered infertile. After cutting the wrong tube, the surgeon panicked and a senior gynecologist from her practice group completed the procedure on the infected fallopian tube on the right. The infection on the right tube likely made it permanently unable to conceive, and the inexperienced surgeon’s negligence made the other fallopian tube also infertile. The surgeon and her employer were sued in the medical malpractice lawsuit. The defense’s argument was that the woman’s infection was so severe that it must have damaged her fallopian tubes, the right as well as the left one. However, they admitted deviation from the standard of care.

The trial in this case lasted two weeks in the New London Superior Court and the jury deliberated for almost 2 days before awarding the woman $1.8 million. $1.3 million was for non-economic damages and $310,000 included her husband’s loss of consortium claim. The defense had earlier offered $100,000 to settle the case before the start of the trial.

Wrong Site Surgeries – the Liability Factor

Will a hospital be held liable for a wrong site surgery? Two factors determine this.

  • The professional relationship between the surgeon and the hospital
  • Laws of the jurisdiction where the injury occurred

If the surgeon is not an employee of the hospital in which he/she practices medicine and is an independent contractor who rents space from the hospital to perform a procedure, then some state laws do not hold the hospital liable for the negligence of the doctor. On the other hand, the hospital can be held liable if the public is given the impression that the hospital has employed a particular surgeon or group, irrespective of whether there is a formal employer/employee relationship.

Medical malpractice attorneys utilizing medical review services can focus more on their cases, and present the case well to the jury and judge because they have a clear understanding of the medical-legal issues involved. They benefit from concise, factual medical review reports that the average juror will find easy to read and understand. With the right medical review solutions, the attorney will have important details such as deviation from standards of care and other critical information at his/her fingertips.

Discover our medical record review solutions and partner with us for your next case.

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