Malpractice Liability for Wrong Site Surgery

One of the most shocking forms of medical malpractice is wrong-site surgery where the wrong part of the body, such as the wrong kidney, is operated on. Many call surgical errors like wrong site surgery “never-events” because they are completely preventable and should, therefore, never happen. When a wrong site surgery is performed there can be a wide range of health consequences and inconveniences including the fact that the victim will have to undergo a second surgery to operate on the correct site.

What is malpractice liability for wrong site surgery?

Malpractice liability refers to whom or what will be held liable/responsible for the damages incurred by the injured party. In some cases the surgeon or medical staff will be liable but in other cases it will be the hospital where the surgery was performed. While it is fairly simple to prove that a wrong site surgery occurred, it can be difficult to properly attribute liability. The reason that it can be tricky is that a wrong site surgery usually involves failures by multiple health care providers at a hospital or other health care facility. For example, the nurse may read the hospital chart incorrectly and cause the surgeon to mark the incorrect site for surgery because he or she fails to double check the chart.

Wrong site surgery liability legal doctrine

The legal doctrine called res ipsa loquitor, or “res ipsa” applies in most wrong site surgery cases. It is a res ipsa case when the injury could not have happened without negligence of some kind. In these cases there is no need to prove medical negligence because it is obvious if your left foot was amputated instead of your right.

Who is liable in wrong site surgery claims?

In order to reduce the number of negligent errors like wrong site surgeries most hospitals, health centers and care providers follow universal pre-surgery protocols including pre-procedure verification. This process involves a team of doctors and nurses identifying that the correct patient is present, the correct records and paperwork are in place and completely filled out and that the surgical site is marked and confirmed. This process is preferably completed while the patient is still awake and lucid. The operating surgeon (or one of the operating surgeons if there are multiple assigned to the operation) is responsible to mark the site in a clear, unambiguous way under supervision by another participant in the procedure.

When a wrong site surgery happens in a facility with checks in place then that means someone acted negligently. Who, then, can be held responsible?

In the vast majority of wrong site surgery claims the surgeon (or the team of surgeons) who performed the surgery will be held liable. Depending on the laws of the state you reside and the type of surgery, the team may include nurses, anesthesiologists or other medical staff involved in the procedure. Surgical prep staff are responsible for providing appropriate information to the surgical team – including providing the correct medical records and surgery orders.

Hospital liability for wrong site surgeries

In some states, in order for a hospital to be held liable for a wrong site surgery the surgeon who performed the operation must be an employee of the hospital rather than an independent contractor. Even if the surgeon was a contractor, however, the hospital could still be liable for the error if they acted negligently in some way or if the negligence was committed by a hospital employee, staff member or someone else the hospital was responsible for. Most states have passed laws stating that if a surgeon is presented as an employee of the hospital that the hospital is responsible for their conduct, whether or not there is a formal employer/employee relationship. On the other hand, some states are pro-defendant and have passed laws that make it difficult to find hospitals liable regardless of the situation.

The Seattle personal injury attorneys at Morrow Kidman Tinker Macey-Cushman, PLLC have years of experience representing families harmed by medical malpractice. We seek justice for patients who have been harmed by preventable medical errors including birth injuries, hospital-acquired infections and wrongful death in Seattle and across Washington State. There are no fees or expenses to file a personal injury case as we only receive payment if we recover damages on your behalf. Do not delay; personal injury claims come with a Statute of Limitations, which means they must be filed within a certain time frame of the injury.

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