What he didn't tell Ken: A lawsuit over wrong side surgery

It started as a typical work-related injury and trip to the doctor for Ken Plants, age 53, of Bristol, Wisconsin, but escalated into a life-altering situation.

Ken, a carpenter superintendent, was used to aches and pains but this was different; this required medical attention. Ken's neurosurgeon informed him that he had a bulge on the right side of a disc in his lower spine and that it was causing pressure on a nerve, ultimately affecting his right leg. The physician informed Ken that surgery was required but it's what he didn’t tell Ken that would end up hurting his patient the most.

"The overwhelming majority of doctors in this community provide excellent care," said Frank Crivello, one of the attorneys with Warshafsky Law Firm who represented Ken. "We turn down more than 95% of the medical malpractice claims that cross our desks. But sometimes doctors make mistakes that could have been prevented and, on the very rare occasion, a doctor does something amiss and then isn't up-front about it with his or her patient. Those are the cases we take on."

On February 26, 2004, the neurosurgeon operated on Ken to relieve the pain on the right side of his body. When Ken woke from surgery, he felt something he never felt before—pain on the left side, shooting down his leg, with numbness, loss of feeling, and a stabbing sensation - and it was getting worse.

The surgeon told Ken the surgery had been completed on the right side of his body, but subsequent records—a vague operating report and follow-up MRIs, CT scans and second-opinion doctor visits—would prove different. The surgeon had removed tissue from Ken’s healthy side, leaving him both with his initial pain and new discomfort on his left side.

"Because the surgeon never told Ken what really happened in the operating room, Ken spent the next months at follow-up appointments trying to pinpoint the cause of his new pain," added Ted Warshafsky, the founder of Warshafsky Law Firm. The surgeon "wasted the window of available time to fix Plants original injury and then left his patient with permanent damage in two areas. That shouldn't have happened and that's why we spent five years representing Plants."

The surgery had hit the S1 nerve, preventing Ken from working in carpentry again. He walks with pain in both legs forever because the surgeon never told him he'd operated on the wrong side. He lives with a morphine pump permanently implanted into his back that delivers medication to his nerves.

"There were so many difficult times over the past five years," explained Ken. "Physical pain. Emotional pain. But the scary thing is knowing that I'm not the first person this type of thing has happened to. I'm glad that I have a chance to tell people what happened to me. Hopefully my story will help somebody else."

Records from the Wisconsin Association of Justice state the number of medical malpractice cases filed is declining, and of those, only a small percentage of cases actually make it to trial. The Wisconsin Medical Mediation Panels indicate that 150 medical malpractice cases were filed in 2007, down 34% from 1996. Data collected by Randy F. Sproule, administrator of Wisconsin's Medical Mediation Panels, reveal that of the 30 cases that made it to trial in 2007, only five resulted in verdicts favoring the plaintiff.

Advice to victims of a surgical error: Sometimes you need to file a lawsuit to get justice.

Read another story about wrong side surgery. Thanks to Kimberly Stobb for the source story, a press release from the Warshafsky law firm in Milwaukee.