Wrong-site, wrong-patient or wrong-procedure cases are a failure on the part of the entire medical surgical team to carefully read the chart and as a part of the pre-surgical preparations during a time-out procedure to use active communication to confirm the basic facts of a pending procedure the patient is to undergo. These failures can include clearly marking the site and talking to the patient. You may believe the surgical team asks too many times what side, what procedure or who you are, but they are doing their job properly. If that’s happening be secure they are doing the job you hired them to do. If not and an error occurs, call us, at Lombardi Law Firm.

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What do you do when you've experienced a wrong-site, wrong-patient or wrong-procedure surgical error?

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What do you do when you've experienced a wrong-site, wrong-patient or wrong-procedure surgical error?

What do you do when you've experienced a wrong-site, wrong-patient or wrong-procedure surgical error?

GUIDE TO WRONG-SITE, WRONG PROCEDURE AND WRONG-PATIENT SURGERY


To represent a person who’s undergone an unnecessary surgical procedure requires a thorough understanding of who is involved, what procedure was involved, what standards apply in the surgical suite, who the patient is and how communication broke down resulting in this OBVIOUS of a mistake. Instruction on left versus right took place in grade school. It goes without saying that all patients have names and an identity that is clearly marked or should be clearly marked at entry into the facility. And lastly there is the patient’s chart setting out the diagnosis, procedures, conditions and limitations involved.

What takes people by surprise is the obviousness of incorrect assumptions. What causes most of the head scratching is the explanations later given by those who made the mistake.



Like most areas of civil litigation discovery will show there to be a break down in the process of how the system is intended to work. In other words someone is cutting corners or refuses to be told what to do. “It’s never going to happen to me.”, is a statement I’ve heard. Then comes the, “I never believed it would happen to me!” Yes, it can. It can happen to a surgical team including the surgeon, who is supposed to be captain of the ship. Arrogance, being overworked or cutting corners is no excuse for the harm that can flow from such a mistake. This is not a simple mistake. This is a huge mistake of judgment.

Blaming the patient is unacceptable. Just saying that mistakes happen is not a sufficient answer. Just referring to it as an honest mistake is no justification for not knowing what is in the chart, or asking for the patient to identify themselves, or taking the time to mark the correct surgical site or for knowing why this patient is in the hospital.

Below is a list of what sources we examine in this rather interesting examination of human behavior and failure. As we proceed through the month we will examine each element and provide our explanation of why it is important to your case. If you have any questions call me and we can discuss a co-counsel relationship. If you’re a physician and want to discuss it my phone number is available. Don’t allow this to happen to your patient.

 

TABLE OF CONTENTS

  • Part I - Board of Medical Examiners
  • Part II - The Clinic
  • Part III - Surgical Services offered
  • Part IV - The Surgery Center
  • Part V - The Joint Commission
  • Part VI - The Joint Commission – Supporting Information For The Universal Protocol
  • Part VII - The Joint Commission - Most Challenging Standards
  • Part VIII - The Joint Commission & Health Care Safety and Quality – Setting The Standard
  • Part IX - AMA Articles – Arch Surgery Journal Articles
  • Part X - American College of Surgeons – Journal Articles
  • Part XI - Product and Procedure Solution Options
  • Part XII - Pleadings
  • Part XIII - Discovery
  • The cover letter is the demand letter. The cover sheet is the law suit caption.
  • Come visit us as we explore this very interesting and somewhat challenging cause of action.

    • Some Recent News Related to Wrong-site, Wrong-procedure and Wrong-patient Surgeries:

    Rhode Island hospitals after being fined $50,000.00 for three wrong-site surgeries at Rhode Island Hospital over the past several months is creating new procedures designed to prevent the same mistake. No details are presented concerning what those new procedures would be.



Are you one of the many patients who every year experience a medical mistake that seems so obvious you can't believe it happened to you? Did they operated on the wrong site or do the wrong procedure or worse yet operate on the wrong patient. We have experience litigating these cases and can help you. It's really pretty straight forward. Don't talk with the doctor or hospital’s insurance company representative. They aren't there for you. If you are the surgical patient it's important you understand the time-out procedure and how it's supposed to be used. Lombardi Law Firm has been studying this issue and we have represented clients involved in wrong-site surgeries.

Remember there are three types of surgical mistakes that the time-out is supposed to prevent. 1. Wrong-site surgeries. 2. Wrong-patient surgeries. 3. Wrong-procedure surgeries.  If this happens to you contact the Lombardi Law Firm. We will assist you with your claim.  Know your rights, act proactively and protect yourself.



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  • Serious Reportable Events (SREs)- Never-Event Fact Sheet [PDF]   
    Never events can be avoided, but first we need to talk about why they occur. On this legal cite we explore wrong-site-patient-procedure surgeries.
  • Florida: Wrong-site, Wrong-patient, Wrong-procedure or "never-events".   
    A Florida blog that discusses very generally Wrong-site, Wrong-patient, Wrong-procedure or "never-events".
  • New England Journal of Medicine: A pre-surgical checklist includes the time-out.   
    wrong-site, wrong-procedure, wrong-patient, surgery, time-out, pre-surg, surgical, team, Doctors have reported that a simple checklist of procedures to be under taken and other such basics can halve the rate of surgery related deaths. The World Health Organization team reported the checklist procedure was similar to the one pilots used before every flight and this simple and inexpensive addition could also cut the complication rate post surgery.

    "Using a surgery checklist designed for safety cut the complication and death rate by a more than a third," said lead researcher Dr. Atul Gawande, an associate professor of health policy and management at the Harvard School of Public Health and a surgeon at Brigham and Woman's Hospital, Boston. "The safety of surgery has now become a major public health concern."

    The report was published in the Jan. 14 online edition of the New England Journal of Medicine. In the study Gawande's team collected data on 7,688 patients across hospitals in Seattle; Toronto; London; Auckland, New Zealand; Amman, Jordan; New Delhi, India; Manila, Philippines; and Ifakara, Tanzania.
  • Minnesota Patient Safety Reports - Preventable Errors   
    Iowa, wrong-site, surgery, preventable,
    errors, hospitals, reporting,
    increase, patient, safety
  • PAMELA G. ROCK vs. WARHANK, BLUE GRASS FAMILY, et. al. - Medical Malpractice Statute of Limitations [PDF]   
    Pamela Rock developed a lump on her breast. She went to the doctor who later diagnosed breast cancer. She alleges malpractice in the detection process and what was told to her about her condition. Allegations are just that and will need to be proven. The District Court and the Iowa Court of Appeals found she filed her case too late; two days late. The Iowa Supreme Court in a decision that backs away from the Court’s latest pronouncements for tort deform held her case could proceed.

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  • American Academy of Orthopaedic Surgeons (AAOS) Wrong-site Surgery Advisory

    Description: Information Statement
    WRONG-SITE SURGERY

    This Information Statement was developed as an educational tool based on the opinion of the authors. It is not a product of a systematic review. Readers are encouraged to consider the information presented and reach their own conclusions.

    Wrong-site surgery is a devastating problem that affects both the patient and surgeon and results from poor preoperative planning, lack of institutional controls, failure of the surgeon to exercise due care, or a simple mistake in communication between the patient and the surgeon.

    Wrong-site surgery is not just an orthopaedic surgery problem that occurs because the surgeon operates on the wrong limb. This is a system problem that affects other surgical specialties as well. While the number of reported orthopaedic surgery cases is not high relative to the total number of orthopaedic professional liability insurance claims, a retrospective study of a sample of insurers across the country provides evidence that 84 percent of the cases involving wrong-site orthopaedic surgery claims resulted in indemnity payments over a 10-year period, compared to all other types of orthopaedic surgery claims where indemnity payments were made in 30 percent of orthopaedic surgery claims during this same time period.

  • Is this tool the cure for wrong-site surgery and other OR errors?

    Description: Editor-in-Chief
    obg@dowdenhealth.com

    A new 19-item checklist for safe surgery from the World Health Organization (WHO) aims to improve communication and cohesiveness among team members at three key mileposts:

    Before anesthesia is induced—“Sign In”

    Before the skin incision—“Time Out”

    Before the patient leaves the OR—“Sign Out”

    Wrong-site surgery is devastating—for the patient and family, of course, but also for the surgical team. Almost always, such error is the result of poor surgical process and ineffective communication among members of the surgical team. Now, WHO is working to improve the surgical process and team communication around the globe—with the goal of eliminating error in the operating room (OR). Is your hospital or clinic following through?

    First, some background

    After a spate of wrong-site surgical events that were covered intensively by the national media, including a highly publicized wrong-side brain surgery at Rhode Island Hospital in 2001, The Joint Commission in July 2003 designated elimination of wrong-site surgery as a National Patient Safety Goal. The Commission’s Universal Protocol, or UP, including the preprocedure “Time Out,” was made standard practice for all surgical procedures both in the main OR and at other care sites. (Editor’s note: The Joint Commission issued a revised Universal Protocol in January; you can read it, and considerable background on this safety effort, at http://www.jointcommission.org/PatientSafety/UniversalProtocol/.)

    The 3-step UP

    The Universal Protocol calls for the surgical team to take three steps preoperatively:

    confirm the patient’s identity using at least two identifiers

    mark the operative site

    take a final “time out,” which requires “active communication among all members of the surgical team, consistently initiated by a designated member of the team, conducted in a “fail-safe” mode” such that the procedure is not started if a team member has concerns. The “time out” includes explicitly confirming 1) the identity of the patient, 2) what procedure is planned, and 3) the correct site of surgery.

    There is more: The team should confirm the availability of all appropriate equipment, and members should be asked if they have any concerns about the plan.

    This is not news to ObGyns and other surgeons; most practice sites have developed a checklist to ensure that the Universal Protocol is implemented. But, as experience with the Universal Protocol has evolved, it’s become apparent that the protocol should be expanded to include briefing and debriefing components.

    Renewed focus on “Before” and on “After”

    About one half of all surgical complications can be prevented, studies of surgical error suggest.1Communication failure and poor teamwork among members of the surgical team are a commonly observed cause of adverse surgical outcomes.2 To improve teamwork and reduce communication failure, many experts have urged that the Universal Protocol be expanded to include a preprocedure briefing and a postprocedure debriefing. Such a briefing process may reduce preventable errors in several ways:

    encouraging ongoing communication

    sharing information

    prioritizing tasks

    improving attention

    avoiding tunnel vision.

    Enter the Checklist

    Building on these ideas, WHO has developed a Surgical Safety Checklist that incorporates many of these best practices into a 19-item checklist (TABLE). It’s hypothesized—and hoped—that the checklist will improve teamwork and effective communication; foster adherence to optimal surgical practices; and improve the team’s ability to anticipate possible adverse events.

    That hypothesis has been bolstered by the results of a recent study of 7,688 patients who were undergoing noncardiac surgery at any one of eight hospitals. Implementing the WHO Surgical Safety Checklist led to 1) a decline in surgical death—from 1.5% to 0.8% of surgeries (p= .003)—and 2) a reduction in overall complications from 11% to 7% (p < .001). Surgical-site infection was reduced from 6.2% to 3.4%, and unplanned return to the operating room declined from 2.4% to 1.8% of surgeries.3

    The design of that study doesn’t allow us to identify, with precision, the reasons that using the checklist improved outcomes. It’s possible that the performance of members of the surgical team improved because they knew that they were being studied (the so-called Hawthorne effect). More likely, the structured, collaborative conversation prompted by the checklist improved the exchange of critical information and stimulated group decision-making, which, in turn, improved outcomes.

  • Libel/Slander Immunity Medical Examiner Reporting Requirements Standards of Practie

    Description:

    According to a Des Moines Register article libel suit between the Woodbury County Medical Examiner [ME] and a surgeon he reported to the Iowa Board of Medical Examiners was ‘tossed' by Judge Reade. But I don't think that's completely accurate. I believe the suit is still alive although portions of it have been ruled upon in a way that is adverse to the plaintiff, but favorable to the defendant. The ME reported a doctor for what he thought was standard of care issues. I've not completely read the decision but will guess the main issues were immunity from suit. Okay, I've located the opinion and I'll add this link and add the decision to my site under defamation. The Order is 40 pages long. I can see both sides of this argument. On the one side you have the ME's role as a government official and medical doctor protecting citizen patients. On the other side you have a doctor spending a considerable amount of money, $200,000, defending himself. No one will be happy with this controversy.


    Here is the conclusion from page 39 by the Court.



    c. Conclusion


    The court concludes, as a matter of law, that Dr. Carroll did not act with actual malice in publishing the statements in the Letter. Dr. Reeder puts forth no evidence that Dr. Carroll knew his statements were false. Nor is there "‘sufficient evidence to permit the conclusion that [Dr. Carroll] in fact entertained serious doubts as to the truth of his publication.'" Barreca, 683 N.W.2d at 123 (quoting Caveman Adventures, 633 N.W.2d at 762). Because he did not publish the statements with actual malice, Dr. Carroll's statements in the Letter are qualifiedly privileged. For the same reason, he also is immune from civil liability for the statements pursuant to Iowa Administrative Code r. 653-22.2(2)(f). Accordingly, the court shall grant the Motion to the extent it seeks summary judgment with respect to Dr. Reeder's libel and false light claims.12



    Is this matter completely concluded? Probably not, the case is probably still alive in the sense that there are other claims/issues to be resolved. Here is why. The plaintiff sued under three different theories of liability: 1. Slander. 2. Libel. 3. False light invasion of privacy. Here is a quote from U.S. Judge Linda Reade's opinion.


    In the Complaint, Plaintiff asserted claims against Defendant Thomas Carroll, M.D., ("Dr. Carroll") for slander, libel and false light invasion of privacy. On April 6, 2009, Dr. Carroll filed an Answer (docket no. 10), in which he denied the substance of the Complaint and asserted affirmative defenses.


    From a practical standpoint parts of the case have been decided, but there are portions of the claim that have not.


     

  • New Options Available For Ophthalmologists To Avoid Wrong Site Surgery

    Description: The American Academy of Ophthalmology is offering ophthalmologists two new tools to help members avoid wrong site or wrong IOL errors. The tools include a new protocol with a simple checklist to follow prior to and the day of surgery as well as a new CME course.

    The new protocol was developed by the Academy's Wrong Site/Wrong IOL Task Force, which was established by the Academy, with the assistance of the American Board of Ophthalmology (ABO) and the Ophthalmic Mutual Insurance Company (OMIC). Also helping in the development of the protocol were nine subspecialty societies and other ophthalmic organizations*. The protocol outlines suggestions to help surgeons evaluate their own system to minimize preventable surgical errors. In addition, the protocol includes a simple checklist for doctors to use pre-operatively and in the operating room. Laminated copies of the checklist have been mailed to the Academy's membership in the U.S. Additional copies can be downloaded at the Academy Web site.

  • Tips for Patients to Prevent Wrong Site Surgery

    Description: If the surgeon made a mistake and operated on the wrong side, or did the wrong surgery or worse yet operated on the wrong patient this is the site for you. Contact the Lombardi Law Firm. If you want to prevent this from happening to you follow the Joint Commissions suggestions for avoiding these kinds of mistakes.

    Tips for Patients to Prevent Wrong Site Surgery

    You and your surgeon should agree on exactly what will be done during the operation.

    Ask to have the surgical site marked with a permanent marker and to be involved in marking the site. This means that the site cannot be easily overlooked or confused (for example, surgery on the right knee instead of the left knee).

    Ask questions. You should speak up if you have concerns. It's okay to ask questions and expect answers that you understand.

    Think of yourself as an active participant in the safety and quality of your health care. Studies show that patients who are actively involved in making decisions about their care are more likely to have good outcomes.

    Insist that your surgery be done at a Joint Commission-accredited facility. Joint Commission accreditation is considered the "gold standard," meaning that the hospital or surgery center has undergone a rigorous on-site evaluation and is committed to national quality and safety standards. To find out if a facility is accredited, visit Quality Check.
    For more information see, Help Prevent Errors in Your Care: For Surgical Patients.

  • Universal Protocol

    Description: The Universal Protocol is intended to protect the patient from wrong-site, wrong-patient or wrong-procedure types of surgery.

  • Washington Post - Medical Errors, Wrong-site Surgeries

    Description: The Problem Surgery on the wrong body part -- or the wrong patient -- is widely regarded as the one of the most egregious errors in medicine. In recent years the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) as well as some physician and patient advocacy groups have tried to eliminate such errors by having doctors or patients -- or both -- mark the correct site or verify the procedure beforehand.

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