It is not common, but it occurs surprisingly often: a doctor does a procedure on the wrong leg or even the wrong patient. Doctors call that a “wrong-site” surgery. Most malpractice lawyers have had clients who had an arthroscopy procedure on the wrong knee. Amazingly, in almost all those cases, the doctor says it was a good thing he/she went in there, because problems were found that would have needed arthroscopy at some point in the future.
Most of the wrong-site surgeries are orthopedic, although there have been reported cases of the wrong breast being biopsied or the wrong kidney operated on. Some reports say that orthopedic cases comprise about 65% of the reported cases of wrong-site surgeries. The American Board of Orthopedic Surgery initiated a “Sign Your Site” policy in 1997 to prevent wrong-extremity orthopedic surgery in the U.S., and this was expanded to a mandated Universal Protocol in 2008. However, since most such errors are self-reported, it isn’t known whether the true incidence has decreased.
Under the “sign your site” procedure, the orthopedic surgery uses a marker and places his/her initials on the extremity, such as a knee, where the surgery is planned. An additional safeguard currently used in almost all operating rooms is a “time out” before an incision is made, in which all participants, including doctors, nurses, and even the patient, clarifies exactly where the surgery is going to be done.
Human error being what it is, however, even this does not prevent mistakes. We represented a man who had an ankle reconstruction done on the wrong leg. After the “time out” discussion, the patient was anesthetized. One of the nurses then wheeled the gurney to the hallway, and in the process caught her finger between gurney and door and suffered an injury. The OR personnel responded to her situation, and when they got back in the OR to begin the procedure someone mistakenly gowned the wrong leg. The patient awoke from anesthesia to find the wrong leg bandaged and an embarrassed doctor standing by his bedside.
One might think this is what lawyers call a “slam dunk” case, but it took almost two years to resolve. The doctor blamed the nurses at the surgery center and the nurses blamed the doctor. Since two insurance companies were involved, the finger-pointing and blame-shifting resulted in numerous depositions. In addition, both sides disputed the seriousness of the injury and the impact on the patient’s life. He could not return to his previous manufacturing job, but they argued that he had alternative employment opportunities and seemed to be doing well even when on crutches and using a walker for almost a year.
The incidence of “wrong patient” surgeries is not known, but they do occur. A recent report in the journal “Outpatient Surgery” told the sad story of the confused pediatrician who operated on the wrong newborn. A one-day old child had a frenulectomy performed. This is a procedure in which the muscle connecting the tongue to the floor of the mouth is too tight and needs to be cut. The doctor explained that, after speaking to the parents of the correct child, he then transposed the names when asking a nurse to bring the baby to the OR.
Our firm was involved in a case where our 62-year old client was waiting in the hallway to be taken to the OR for an elective procedure requiring heavy sedation. When he awake after the surgery, he found that he had undergone a circumcision that he didn’t want or need. There were two patient gurneys in the hallway and someone wheeled in the wrong one. Whenever multiple procedures are scheduled and delays are causing stress or anxiety, human nature rears its head and mistakes occur.
