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.

Write on the incision site: Wrong site wrist/finger surgery

Here is an example of what has been reported and the initial changes made as a result of Massachusetts hospitals' analyses of "serious reportable events," as required in the new Chapter 305 state law.

A Spanish speaking only patient was admitted for surgery to release a left trigger finger, a condition where the finger catches in a bent position and straightens with a snap; instead she had a carpal tunnel release, a completely different operation on the wrist and not the finger.
This mistake was not discovered by the team in the operating room, but by the doctor when he returned to his office and looked at the patient's medical record.

To avoid this error from recurring, the hospital changed its policy from having the surgeon sign the side of operation to requiring the surgeon to sign the actual incision site. Also in this case, not all team members participated in the time out. In response, two more important issues were addressed by the facility: first, the policy was changed to require the presence of an interpreter for non-English speaking patients, so they could answer questions about the operation and verify the site, as required by the Universal protocol; and second, a revised hand-off routine was instituted to accommodate changes in staff immediately before and during the operation.

Advice to surgical patients: Have the surgeon mark the incision site, not just the correct side of your body – or mark it yourself.

Kudos to Dr. Stancil Riley, Tracy Gay of the Betsy Lehman Center, and Elizabeth Daake of DPH to helping this happen and making this available at the Massachusetts Department of Public Health's website.

Read another wrong-site surgery story.

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.

How easy it is to be silent: Apology for a surgical error

What does not weigh on Dr. John Riley's conscience is silence. [Names have been changed.] As tempting as it was to tell Thelma Jones and her son that a biopsy was planned of her right lung and that the pneumothorax was the unfortunate outcome of a necessary procedure, John Reilly chose to tell the truth. I admire him for that. I know just how easy it is to be silent.

Many years ago, I witnessed an Ob-Gyn make a terrible mistake during a routine hysterectomy. I stood in the Operating Room retracting a patient's belly while he carelessly hacked out her ovary. I stood next to her hospital bed as he lied to her about his mistake.

"We had to take the right ovary, Gina."

"Why? What happened?"

"Jesus Christ, Gina. It was a mess in there."

"I'm sorry."

She apologized. As if it was her fault that he had butchered her ovary.

He offered no other explanation. Yet I did not speak up when this incident occurred. I was a medical student with my career in front of me; he was an attending surgeon. I participated in the complicity of silence.

Advice: Ask for a clear explanation if a medical procedure has not gone as expected.

Browse for related stories in the index at the very bottom of this page, or read a patient-doctor miscommunication story.

Thanks to Dr. Helena Studer for the source article in issue 33 of Creative Nonfiction.

The chief medical officer made the error public: Wrong side kidney surgery

When doctors at a Minnesota hospital made a mistake by removing the healthy kidney from a cancer patient, the hospital system's chief medical officer made the error public. 
Accounts by the hospital place blame on a crucial error that happened several weeks before the surgery. Apparently the kidney on the wrong side was identified on the patient's medical chart as potentially cancerous.
 New procedures have now been put into place requiring the surgical team to verify sites using the diagnostic imaging before an operation begins.

According to news reports, 24 wrong site surgeries were reported to the Minnesota Department of Health between October 2006 and October 2007. That is two per month, just in Minnesota!
 These would have surely gone unreported but for Minnesota Governor Tim Pawlenty, who signed a bill requiring that hospital errors must be reported to the state.

Advice to surgery patients: Read your medical chart carefully beforehand, or have your patient advocate do so.

Read another wrong site surgery story.

Thanks to Frank Bailey and Sach Oliver for their source blog post on March 24 at the InjuryBoard, the blawg of their law firm.

Its third wrong-site surgery this year: Errors in brain surgery

The Rhode Island Department of Health reprimanded a Rhode Island hospital yesterday, and fined it $50,000, for its third wrong-site surgery this year. Doctors at the hospital had performed four wrong-site surgeries in six years, all involving brain surgery.

An 82-year-old man was in the neurosurgical intensive care unit (ICU) for brain surgery on Friday. A CT scan had shown bleeding on the left side of his brain. A resident (a physician in training) began drilling into the right side of the patient's head. The resident realized the mistake, closed the initial incision, and performed the procedure on the left side.

As a result of the latest incident, all intra-cranial neurosurgical procedures will have an attending physician present for the entire procedure, hospital officials said.

Advice for patients at teaching hospitals: Add and initial a note on your patient consent form that requires a real physician to accompany the resident throughout your surgical procedure.

Browse for related stories in the index at the very bottom of this page, or read another wrong site brain surgery story at the same hospital three months ago.

Thanks to Liz Kowalczyk for the source article in today's Boston Globe.

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.

The Surgery Director’s Choice: Wrong side surgery

I get paged a lot every day in my job as director of surgical services. One call I'll never forget came several years ago. There had been a serious mistake: A surgical team had operated on the patient's wrong side.

The patient was in the recovery room, just waking up. The surgeon and I had to deliver the devastating news. I cannot begin to describe our disbelief and shock, shared by everyone involved. The patient, naturally and justifiably, was very angry.

Our team's sense of guilt and grief over this extremely rare event was overwhelming. The surgeon was a good one, the team supporting him, highly accomplished. But there was no escaping the consequences. New in my job, I prepared to resign. I went to my boss and told her that despite all my years as a surgical nurse, I hadn't truly recognized the extent of responsibility in this job. This case had shattered my confidence.

Fortunately, she sat me down for a long talk about the case. I had a choice: either quit, or use this terrible experience to make a difference.

In part because I had told the patient I would do everything I could to make sure this never happened again, I decided to stay. I also started researching data on preventing serious medical errors. We joined in a collaborative effort: Safest in America, which has both significantly changed the delivery of care in Minnesota, and the statewide reporting of errors. The surgeon marks the site, and three additional people sign off on the location BEFORE you arrive in the operating room. Once there, a final check, or "time-out," takes place before the procedure begins.

This protocol is but one small example. But I think that my colleagues and I are making good on the promise I made to that unfortunate patient years ago: We are doing all we can to make sure it doesn't happen again.

Advice to patients: Write “correct” and “wrong side” on your parts before surgery. Only write “correct” on the parts you want to keep.

Read Dana Langness’ full story, or learn more about the Safest in America collaboration.