Wrong patient/wrong site surgery

Legally Speaking

Clifford Warren Lober

Dr. Lober is a dermatologist in practice in Florida and a partner in the law firm Lober, Brown, and Lober.

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Bryan returns to his office from a busy day in court only to find Sheila, a dermatologist who is a client, waiting in his office. He begins the conversation.

Bryan: Good afternoon, Sheila!

Sheila: Bryan, a terrible thing happened in my office this morning. One of my patients, Mr. Frankel, was scheduled to have a severely dysplastic nevus removed from his upper back. Unfortunately, when we called for Mr. Frankel to come to the surgery room another patient of mine, Mr. Frank, an 85-year-old gentleman with a hearing loss, went to the surgery room. I was running about an hour behind time and my nurse had already asked the patient to remove his shirt. When I examined his severely sun damaged upper back, I noted an irregularly pigmented lesion, assumed it was the lesion I had biopsied two weeks earlier, and surgically excised it. When I went to my EMR to complete an operative report, I was shocked to find I had operated on the wrong patient! What should I do?

Bryan: What did you tell Mr. Frank before you did the procedure? Did you get his informed consent, preferably in writing?

Sheila: Yes, I had him sign our informed consent form after I explained that the irregularly pigmented lesion needed to be removed. I answered his questions and he signed the consent form.

Bryan: Sheila, assuming that the lesion on his back was clinically suspicious enough to merit its removal, it may have required excision regardless of whether or not you has previously biopsied it. Did you send the tissue for histologic examination?

Sheila: Yes, Bryan. It was sent to a board-certified dermatopathologist.

Bryan: Good! If the pathology report comes back and histologically substantiates your clinical impression, it strengthens the case that the excision was appropriate. What did you tell the patient?

Sheila: After I realized that I had operated on the wrong patient, I told Mr. Frank that I had mistakenly thought he was another patient with a very similar name in whom a biopsy had revealed an atypical lesion, but that the lesion on his back which I had removed was clinically highly suggestive of a premalignant or malignant lesion and needed to be removed anyway. Can I be sued for having removed the lesion from Mr. Frank?[pagebreak]

Bryan: Anyone can be sued for anything, but whether the suit has merit is a different issue. In a suit for medical malpractice, one of the elements that must be proven is that the plaintiff suffered damages. These damages must be actual, not hypothetical or theoretical. In this case, if the standard of care is to excise a lesion that is as atypical as you described, we would argue that the lesion needed to be removed anyway and we had simply avoided putting the patient through an unnecessary biopsy procedure.

In some situations, however, state statutes specifically mandate that wrong site or wrong patient surgery is a misdemeanor or felony. It could then be prosecuted by the state and, depending upon the specific wording of the statute, possibly by a private individual. I will have to check the wording of our state statute.

Sheila: Do I need to report this incident?

Bryan: In some states the law requires all wrong patient/wrong site surgeries to be reported to the Board of Medicine, but this is not the case in all states. I would, however, report this incident to your insurance company. In order to assure your insurance coverage in the event the patient pursues this matter, you usually have a duty to report incidents to your insurance company in a timely fashion.

Sheila: Do you have any other recommendations?

Bryan: Yes. Be sure to remove the severely dysplastic lesion from Mr. Frankel, the patient who really had this lesion. I would also change your clinical practice to be sure this does not happen again.

Sheila: What would you suggest?

Bryan: Many states have a “time out” or “pause” rule that requires that you take the time before a surgical procedure to be certain you have the right patient and are planning to operate on the correct site. You can also ask your nurse or surgical assistant to reaffirm that identity of the patient and the location of the lesion you intend to excise.

Many of your patients are extensively sun-damaged which may make location of a prior biopsy site difficult. You can take a digital photograph and include a ruler in the picture to show the location of the lesion. You may, alternatively, draw a diagram with measurements from anatomical landmarks to locate the lesion, or perhaps even leave the sutures (if any were placed) in the positive biopsy site(s) until you are ready to do the surgery. If there is any uncertainty, you may also want to give the patient a mirror and confirm the site with the patient. Finally, if the biopsy procedure was performed by someone else and the location is uncertain, you may want to send the patient back to the practitioner who did the biopsy to mark the site for you so that there is no reasonable possibility of confusion. Mention any of these precautions in your office notes or surgical report.

Sheila: Great ideas! I will certainly change my habits.

Bryan: One more thing, Sheila. If you are running so far behind that you feel too much pressure, reschedule the procedure. You are far more likely to have a problem when you are “under the gun.”

If you have any suggestions for topics to be discussed in this column, please e-mail them to me at loberc@gmail.com. See the February 2013 issue of Dermatology World for disclaimers. 



Key points

  1. In order to avoid wrong patient/wrong site surgery, many states have a “time out” or “pause” rule that requires that you take time to confirm that you have the right patient and correct site.
  2. Ask your nurse or surgical assistant to reconfirm the identity of the patient and location of the lesion you intend to biopsy or excise. Consider using digital photography and including a ruler in the photographs, drawing diagrams with measurements from anatomic landmarks, or leaving sutures in positive biopsy sites until you are ready to perform surgery. If there is any question as to the location, you may want to give the patient a mirror and have them reconfirm the site or send the patient back to the physician who performed the initial biopsy to mark the site. Any of these precautions should be mentioned in your office notes or surgical report.
  3. If you are behind schedule or otherwise under stress, you are far more likely to perform wrong site/wrong patient surgery.
  4. In many states wrong site/wrong patient surgery is reportable to the Board of Medicine and may be a misdemeanor or felony whether or not the patient ultimately would have needed to have the lesion removed.
  5. In the event of wrong site/wrong patient surgery, you usually have a duty to notify your medical malpractice carrier to avoid their denial of coverage should the patient pursue the matter.




Key points