Unfortunately, I have had arthroscopic surgery on both knees; torn meniscus separated by eight years.
One was done at a hospital and the other was done at an orthopedic surgery center. Since I handle medical negligence cases, I tend to pay attention to details when I am having a medical procedure done. I have had cataract surgery in both eyes, and recently a colonoscopy. Since I have investigated and handled cases involving all of these medical procedures, I know a little more than the average patient. I am sometimes asked by nurses what kind of law I practice and while I don't lie, I also don't tell them everything I know and have done.
I recall the story of one of my former partners who was entering back surgery at a teaching hospital and the surgeon had all of the neurosurgery residents in the holding area surrounding his bed when he did the last conference with his patient prior to surgery. The doctor turned to the residents and expressed to them how much he enjoyed operating on lawyers who handle malpractice cases. Of course, he was joking and the surgery turned out well, but it makes me a little nervous when they know what I do for a living. Maybe they are especially careful. I always joke with them and tell them that by having me as a patient, it is a guarantee that I would never sue them. They rarely see the humor in that statement, but it's true. Unless they make a mistake on me.
Having gone through surgery a few times, I was interested in watching them verify the side of my body they were working on. In the first knee surgery, the nurse who prepared me for surgery, the anesthesiologist, the doctor and I all placed my initials on the correct knee. It looked like a short story had been written on my knee. In the second knee surgery, they didn't mark up my knee as much, but there was clear marking on the correct knee. On the eye surgery, I don't think they marked my eye, but four different people confirmed the correct side.
Therefore, I am surprised that I have handled multiple cases in which the wrong side has been operated upon. I am currently handling a case in which a stent was placed on the wrong side. I have had a case in which the wrong knee was operated upon. I actually had another case in which the orthopedic surgeon operated on the correct knee, but performed the surgery as if he was operating on the other knee. It was a repair of the anterior cruciate ligament (ACL) and he put the ligament in the wrong place as if he were operating on the other knee.
He did not admit it in his deposition even though I had the operative report from the second surgery showing the mistake. In those cases in which the wrong side is operated on, the cases are usually resolved at an early stage.
The Joint Commission is the accrediting agency for all hospitals and surgery facilities. It certifies over 20,000 health care organizations. Its Board of Commissioners approved the “Universal Protocol for Wrong Site, Wrong Procedure and Wrong Person Surgery” in July of 2003, and it became effective July 1, 2004, for all accredited hospitals, ambulatory care and office-based surgery facilities. The protocol was created to address the continuing occurrence of wrong site, wrong procedure and wrong person surgery. The three principal components of the Universal Protocol included a pre-procedure verification, site marking and a time out before proceeding with surgery.
There are exemptions for procedures done through or immediately adjacent to a natural body orifice such as endoscopy, tonsillectomy, or procedures involving the genitalia. According to the protocol, single organ cases don't require marking. Isn't that kind of obvious? Also, cases that do not require a right/left distinction are exempted. The patient can also refuse marking if he or she signs a waiver.
The time out procedure is a good one. Before beginning surgery, let's make absolutely sure we know what we are doing, and on whom we are doing it, before doing it. That makes sense.
Despite these protocols, mistakes still happen. I would suggest if you are going to have surgery on an arm or a leg that you mark on your leg or arm: “Please operate on this arm.” Most health care personnel will follow the universal protocol.
One final thought. Isn't it amazing that it was only in the last 10 years that this has become a protocol? I suspect most prudent health care providers had been following this safety practice for years. My next column is going to be on the large number of preventable deaths in health care every day. Many people say that there are too many malpractice lawsuits. Maybe there are not enough.
Bob Buckley is an attorney in Independence. Email him at firstname.lastname@example.org