This case is intriguing for a couple of reasons. First, in my many years of representing physicians and hospitals I have never been involved in a case of a misdirected surgery (on the wrong appendage or side). Second, this case brings up questions of proper informed consent, a question that Dr. Kevin Pho addressed today on his blog. See: http://www.kevinmd.com/blog/2009/08/should-the-informed-consent-discussion-be-formally-taught.html#comments
According to the newly filed lawsuit, patient William Boykin had planned to have an arthroscopic repair of a tear in his knee. The article doesn’t indicate which knee was the “target” knee but apparently it was marked prior to surgery with a big black magic marker “yes”. Somehow Mr. Boykin’s other knee was repaired. Once Mr. Boykin was rolled into the recovery room the mistake was apparently discovered and Mr. Boykin was told of the mistake as he was coming out of anesthesia. Instead of waiting for the fog of anesthesia to clear, Mr. Boykin’s informed consent was obtained and he was wheeled back into surgery for repair of the proper knee. Mr. Boykin’s attorney states that he is still undergoing treatment for the surgery to the unaffected knee, that he has unexpected medical bills, and that he might need a knee replacement surgery. The attorney described the mistake as “grotesque negligence”. Check out the article here: http://www.tulsaworld.com/news/article.aspx?subjectid=11&articleid=20090814_11_A13_Adocto17316
COMMENT: Well, I don’t know about “grotesque negligence” but there are certainly some concerns borne out from the complaint. First, how is it that a clearly marked “Yes” on the proper knee was missed? What was the hospital protocol? Was there a failure in the hospital protocol and by whom? The surgeon is the so called “Captain of the Ship” so ultimately it is his responsibility to assure that the surgery is conducted on the correct knee. Whose idea was it to obtain “informed consent” from a patient who was coming out of anesthesia to undergo yet another surgery?
On the issue of negligence, it is almost prima facie negligent to operate on the wrong knee, especially when the right operative site was clearly marked. While there may be many defenses to this scenario at first impression this would seem a “no brainer”. On the informed consent issue, we don’t know enough from the article to judge the consent obtained. Was the patient given general anesthesia or regional anesthesia? How long was he under anesthesia for the first surgery? How long was he in the recovery room when he was told that the wrong knee was operated on? What did the physician say to him during that consent discussion and was it clearly documented and witnessed? Mr. Boykin certainly recalled that someone told him of the mistake so maybe he was awake enough to give consent for the second surgery. On the issue of damages, I would expect any reasonable jury would award any monies paid for the incorrect surgery as well as post-operative rehabilitation for that knee. He may even get some coin for the arthroscopy scars (usually three small punctures around the periphery of the knee). He would probably be entitled to future medical bills stemming from the procedure on the wrong knee as well, but a future knee replacement? Only an orthopedic expert can answer that one but it seems unlikely. I wonder though, when operating on the wrong knee was anything found and repaired? Since many people have asymptomatic tears in their knees I wonder if an incidental finding was repaired while the surgeon was there? Many questions left to answer on this one.
Filed under: Legal Issues, Medical Issues
