Surgery on wrong site: What is the physician's liability?

Key Points

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.

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 examiners. Now what?

Unfortunately, wrong-site surgeries do happen. Over a decade ago, a world-renowned 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 hospital was forced to pay a $150,000 fine; conduct a one-day mandatory safety training session for all personnel involved in performing elective surgeries; and implement a proctor to ensure that surgical teams follow safety protocols.

Even more was required. The Rhode Island 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.

'Never event'

Wrong-site surgery is considered 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. Wrong-site surgery is preventable.

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. But this is not all. Other steps should be taken, such as taking a "timeout" before cutting; making sure that 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.

'Do no harm'

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 of 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 pattern, 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 versus left ear.

David Goldberg, M.D., J.D., is director of Skin Laser & Surgery Specialists of New York and New Jersey, director of laser research, Mount Sinai School of Medicine, and adjunct professor of law, Fordham Law School.