I operated on the wrong ear

David J. Goldberg, M.D., J.D.Dr. Cancer is a well respected Mohs surgeon who receives referrals from many physicians. He is well known for his expertise in skin cancer removal. He holds an academic title, lectures nationally on skin cancer treatment, and runs a Mohs fellowship training program. All patients referred to him are required to bring biopsy reports. Some even come with photographs of the biopsied area. Most patients have a pretty good idea of where the biopsy was taken. Two years ago, Dr. Cancer saw a patient with a biopsy proven BCC of the right helix. The patient, during initial consultation, also brought a photo of the involved area. Because the patient was so anxious about her upcoming surgery, Dr. Cancer suggested she take an anti-anxiety medication prior to surgery. Consent forms were signed during the consultation appointment.

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On the day of surgery, Dr. Cancer’s patient took a double dosage of her anti-anxiety medication. She was sleepy and confused when she entered Dr. Cancer’s office. Unfortunately, it was not a good day in Dr. Cancer’s office. The Mohs fellow provided local anesthesia to the wrong ear. Dr. Cancer followed by removing a significant segment of the wrong ear. As the staff began to teach the patient appropriate wound care, the patient’s family noticed that surgery was performed on the wrong ear. Needless to say, they were appalled.  They never returned to the office and filed both a medical malpractice lawsuit and a claim with Dr. Cancer’s state board of medical examiner. Now what?

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Unfortunately, wrong-site surgeries do happen. Over a decade ago, a world renowned New York neurosurgeon lost his medical license for operating on the wrong side of a patient’s brain. Several months ago, a Rhode Island hospital was penalized for allowing five wrong-site surgeries to be performed over the previous three years. The Rhode Island Department of Health was not happy. The hospital was forced to pay a  $150,000 fine, provide one-mandatory safety training session for all personnel involved in performing elective surgeries, and institute a proctor to monitor that the surgical teams would be following safety protocols. Even more was required, in this instance: the Health Department mandated that the hospital install video and audio monitoring equipment in each operating room. There would now be a record of not only the banter that goes on during surgery but also the chosen music of the day. It was felt that such radical measures would get to the root cause of the problem.  Patients, of course, needed to give consent to be videotaped.]

NEXT: Wrong site surgery is preventable

Wrong site surgery is preventable

Wrong site surgery is consider a "never event." Medicare does not pay for repeat surgery if the first one is on the wrong body part. A number of private insurance companies have followed suit.

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One way to decrease the likelihood of such embarrassing (and potentially mutilating) events from happening is to get the patient involved. Explain to the patient before surgery that operating on the proper side is the most important aspect of the surgery. The patient can be given a marker to label the spot. He or she should initial on the consent as to the appropriate location. This should be double checked on the day the patient arrives for surgery.  Most patients will appreciate the extra attention paid to this process. Other steps should be taken, such as a "time out" before cutting; making sure more than one team member identifies the proper spot; and, of course, verifying the proper side with any pre-op biopsy report, pre-biopsy photos and the consent form.

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There are times when patients are unclear as to the exact location of a biopsy. There are times when biopsies are mislabeled. There are many times when there are no photographs. However, the hallmark of medicine is to do no harm. It is a clear-cut breach in the standard of care to operate on one ear when the cancerous lesion was in fact present on the other ear. Once the malpractice case is filed based on the above fact patter, most attorneys would advise Dr. Cancer to settle the case out of court. Similarly, Dr. Cancer needs to try to settle with the State Board of Medical Examiners. There may often be some confusion as to where a biopsy was taken. There should never be confusion as to whether the biopsy was from the right ear vs. left ear.