Issue: August 2013
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Surgical Misidentification: Wrong Site, Wrong Procedure, Wrong Patient

Introduction

Surgical Identification Errors

An estimated 80,000 surgical "never events" occurred in U.S. hospitals during a recent 20-year period, averaging 4,000 per year. These estimates have been described as probably on the low side. The estimates indicate that surgeons perform the wrong procedure on a patient 20 times a week and operate on the wrong body site 20 times a week.

 

Surgical misidentifications are not the type of injury that triggers frivolous lawsuits or settlements made to avoid jury trials as they are fairly unambiguous injuries. Judgments and settlements over the 20-year time period indicate amounts paid out for surgical never events totaled $1.3 billion.

 

Attorneys, physicians, insurers, employers, and others who are involved in litigation concerning surgical misidentifications must be aware of the types of lawsuits that arise from these types of injuries, which strategies and techniques to employ, and which issues are critical to understand.


The Perspectives: Improve Your Strategy

Attorneys:

What proof is needed to establish medical malpractice when an injury results from surgical misidentification? And, what is a potential strategy for the patient’s attorney to employ?

Physicians:

How can liability for medical malpractice be avoided for a surgical misidentification? And, what is a potential strategy for the physician to employ?

Insurers:

Can a payout under a medical malpractice liability policy be avoided by proof that the health provider was not negligent or there was no coverage for the surgical misidentification injury? And, what is a potential strategy for the insurer to employ?

Employers:

Can an employer such as a hospital be subject to liability for an injury resulting from an employee or agent’s surgical misidentification? And, what is a potential strategy for the employer to use?


Practice the Technique: Checklists

Attorneys:

Check this list of facts and circumstances tending to prove a surgical misidentification injury. 

Physicians:

The physician should consider these items when defending against a claim of surgical misidentification.

Insurers:

The insurer should check these "red flags" and inconsistencies when investigating a claim of surgical misidentification.

Employers:

Use this checklist to determine whether a hospital can be found liable for a surgical misidentification by a physician.

Expert Analysis

What Steps Can Providers Take to Reduce the Risks of Surgical Misidentification?

Maggie M. Finkelstein, J.D.

How Can Checklist Protocols Reduce Never Events and Increase Patient Safety?

Peter Pronovost, M.D., Ph.D., FCCM

Litigation

Alternative Dispute Resolution

Arbitration or mediation may be required by contract or statute, mandated by the court or, in some circumstances, may be the appropriate method for a negotiated resolution.


Reasons to Reach Settlement

The following are reasons why the attorney, physician, insurer, or employer would want to reach settlement, and not take the action to trial. 


Reasons to Go to Trial

The following are reasons why the attorney, physician, insurer, or employer would want to take the action to trial. 


Jury Awards and Settlements

How much have juries awarded and what settlements have been reached recently in wrong site, wrong procedure, wrong patient surgery cases? 



Medical Examples

Surgical Misidentifications

This article discusses surgical misidentifications, what they are, the terminology used, and the Universal Protocol for Preventing Wrong Site, Wrong Procedure and Wrong Person Surgery™. Provided is a checklist for prevention of these never events. Factors for physicians and hospitals to consider that have led to surgical misidentifications are included. 



Law and Medicine Resources

Law and Medicine Resources

A listing of law and medical references for further information on surgical misidentifications. 


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Surgical Misidentification: Wrong Site, Wrong Procedure, Wrong Patient

Table of Contents
Introduction

Expert Analysis
   Maggie M. Finkelstein, J.D.
   Peter Pronovost, M.D., Ph.D., FCCM

The Perspectives: Improve Your Strategy
   Attorneys
   Physicians and Health Providers
   Insurers
   Employers and Risk Managers

Practice the Technique: Checklists
   Attorney Checklist
   Physician Checklist
   Insurer Checklist
   Employer Checklist

Alternative Dispute Resolution

Reasons to Reach Settlement

Reasons to Go to Trial

Jury Awards and Settlements

Surgical Misidentifications

Law and Medicine Resources