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.

Put it in writing: Wrong site knee surgery

A surgical team at a southern California hospital made repeated errors that led to a patient operation on the wrong knee, according to a state investigation that was just made public. Even after the patient noted what knee needed surgery, the surgical team still performed the operation on the wrong side, the report says.

The surgery schedule incorrectly indicated that the patient was to have surgery on the right knee. During a preoperative interview, the patient told a nurse the surgery was for the left knee. That nurse then notified the anesthesiologist and the surgeon about the correction.

Hospital records show the word "right" was crossed out and the word "left" was written in by hand, according to the state report.

Another nurse told state investigators that the left knee was marked for surgery but she incorrectly prepared the right knee for surgery. The patient was not asked to verify the correct knee, nor was the patient's history reviewed before the surgery, as called for in the hospital's protocol, the report says.

Before the surgery, the surgeon read out loud that the surgery was for the right knee.

The error was discovered when the patient woke up in the recovery room and pointed out the mistake, the report says.

Advice: Put it in writing. On your own skin, write "the right place to operate" and "do not operate here" on the wrong place, before surgery.

Read another wrong site surgery story.

Thanks to Courtney Perkes for the source story in the May 7 issue of the Orange County Register.

The neurosurgeon relied on memory, not the CT Scan: Wrong site brain surgery

An 86-year old man, who has not been identified, came to the emergency department at a hospital in Rhode Island on July 30 with increasing lethargy three days after a fall. A CT scan indicated he had bleeding on the left side of his brain, and he was transferred to the operating room for surgery to drain the blood.

A nurse practitioner did not record which side needed surgery in the patient’s medical history nor on the consent form signed by the patient’s relative.

When a different nurse — a circulating nurse in the operating room — pointed out that the information was missing, the surgeon wrote down the side where he would operate on the consent form.

The surgeon didn’t confirm his memory by checking the CT scan, health inspectors found. He wrote down the wrong side on the form, and then cut open the wrong side. When he realized his error, he operated on the correct side.

The patient 86-died Saturday, and the medical examiner's office is still trying to determine whether the surgical error contributed to his death.

The hospital's chief quality officer said that the staff's sense of urgency about caring for the patient had superseded the rules.

Of course, as the quality officer added, emergencies are "exactly where policies and procedures need to be as tight as possible."

Cooper said that she believed someone in the operating room had questioned whether the correct side was being cut, but the surgeon was confident he was right.

Advice: Elderly hospital patients should bring an advocate.

Read another wrong side surgery story, or read more from the source article by Felice Freyer in the August 24 issue of the Providence Journal.

I didn't actually read it: Wrong site surgical error

Benjamin Houghton had much to be happy about. He was a father of four. He had survived metastatic testicular cancer, having received chemotherapy in 1989. He knew he could function normally with a single healthy testicle.

While there was no sign of the cancer’s recurrence, his left testicle was atrophied and painful, and there was a chance that it could harbor cancer cells, so he had surgery,, though it was not urgent. Surgeons mistakenly removed his healthy right testicle instead of the left, according to his lawsuit.

On the day of his surgery, the consent form stated that his right one should be removed, and a vasectomy performed on the left, when it should have read exactly the opposite. Benjamin didn’t have his glasses on. He explained, "The surgeon said, 'This is what we talked about before. Just sign here and here.' I didn’t actually read it." Benjamin, an Air Force veteran, did as the doctor ordered.

Lacking the testosterone from the healthy testicle, he may have future complications like sexual dysfunction, depression, fatigue, weight gain, and osteoporosis. He is suing for $200,000 for future healthcare costs and damages, hoping to get the healthcare system's attention, according to Attorney Susan Friery, MD.

Advice to surgical patients: Read the consent form carefully.

Read another veteran’s story, or read Mary Engel’s source story in the L.A. Times.