Presentation
A 35-year-old man came to Orthopedic Surgeon A on referral from his primary care physician. The patient reported pain in his right buttock, thigh, and leg for the past nine months. He had been performing physical therapy exercises at home with no improvement.
Physician action
Orthopedic Surgeon A ordered an MRI that revealed an extruded intervertebral disc at the L5-S1 level. Approximately six weeks later, Orthopedic Surgeon A performed surgery on the patient. Documentation noted, “a decompression of the right nerve root of S1 by the right laminectomy of L5 and discectomy of L5 sacrum via posterior approach.” It was further documented that the operative level was confirmed via intraoperative x-ray.
Initially, the patient’s pain improved; however, recurrent pain later developed. A subsequent MRI, taken approximately two months after surgery, showed the same extruded disc at L5-S1 and post-surgery changes at L4-5. Orthopedic Surgeon A diagnosed “recurrent laminectomy herniated disc.”
Soon after the MRI was conducted, the patient brought a copy of the MRI report to a follow-up appointment with the surgeon. The patient asked the surgeon about the report findings, specifically that surgery had been performed at L4-5 and not at L5-S1.
The patient later testified that the surgeon told him to “not believe the MRI report.” During the appointment, the surgeon and the patient contacted via speakerphone the radiologist who performed the MRI. The radiologist supported his report that surgery had been performed at L4-5 only. When the surgeon told the radiologist that the patient was in the room, the radiologist stated he would review the films again. The radiologist submitted an addendum to the report stating that surgery was performed at both levels L4-5 and L5-S1.
One month later, Orthopedic Surgeon A performed a revision laminectomy on the patient and noted, “widening this and taking part of the S1 lamina.” He further noted an “abundant amount of scar that was adhered to the dura on both its ventral and dorsal surface.” No disc herniation was noted.
Four months later, Orthopedic Surgeon A sent the patient to a pain management specialist for treatment of hip bursitis and persistent coccyx pain. The specialist noted in her records, with regard to the patient’s first surgery, “Rt L4-L5 laminotomy, discectomy (was supposed to be L5-S1).” The specialist treated the patient with two thoracic epidural steroid injections, one performed soon after the initial consultation and the other performed eight months later.
Approximately one year after the revision surgery, the patient consulted with Orthopedic Surgeon B. The patient reported persistent, severe pain in his right buttock down his right leg and pain radiating down his left leg. An MRI was ordered.
Upon review of the films, the surgeon noted a “similar L5-S1 herniated nucleus pulposus.” He further noted that the MRI revealed a “previous hemilaminectomy at L4-5 on the right, some irregularity of the posterior disk space at L4-5, and Modic changes at L4-5 with irregularity of the disc.” He also noted significant scarring on the right and “some lateral recess stenosis at S-1 worse on the right than the left and significant foraminal stenosis bilaterally at L5-S1. There is bilateral arachnoiditis.”
Orthopedic Surgeon B returned the patient to surgery where he performed a hemilaminectomy at L4-5 on the right side and a revision laminomtomy of L5 and S1. He then decompressed the lateral recess at L5-S1 bilaterally, completing bilateral revision foraminotomies at L5-S1 with instrumentation. There was no recurrent disc herniation and the nerve root was completely free.
Allegations
The patient filed a lawsuit against the Orthopedic Surgeon A alleging:
- surgery performed at the wrong level;
- second surgery performed to “cover up” error of first surgery; and
- failure to disclose full list of risks associated with surgery.
Legal implications
Along with risk management issues described below, there was evidence that Orthopedic Surgeon A performed surgery at the wrong level; that he misled the patient; and that he coerced the radiologist to change the records.
Disposition
Given these serious liability issues, this case was settled on behalf of Orthopedic Surgeon A.
Risk management considerations
Wrong-site surgery is a preventable medical error. To reduce the chances of a wrong-site surgery, The Joint Commission has created a Universal Protocol, consisting of a checklist for all members of the OR team to follow. (1)
This checklist is thorough and consists of major checkpoints, such as: “Conduct a pre-procedure verification process; Mark the procedure site; and Perform a time-out.” More detail on the Universal Protocol can be found at https://www.jointcommission.org/assets/1/18/UP_Poster1.PDF.
When medical errors occur, it is important to know how to effectively communicate this to patients. And, if a medical error did not occur, but a poor outcome occurred, understanding the role of apology is important.
The publication, Medical Errors, Disclosure, and the Role of Apology: A Basic Tool for Physicians, offers an approach to communicating with patients who fall within these circumstances in a way that expresses empathy, communicates objectively, and does not necessarily admit fault on behalf of the provider. (2)
“True apologies are called for when clear medical errors have occurred. For example, if a surgeon removes the wrong kidney in a patient, leaving the diseased kidney in place, the surgeon should promptly and appropriately communicate the error and apologize.”
And finally, in the event of an adverse outcome, consider contacting your medical liability carrier as soon as reasonably possible. This allows for accurate documentation regarding the event should there be a claim or lawsuit.
Sources
1. The Joint Commission. The Universal Protocol for Preventing Wrong Site, Wrong Procedure, and Wrong Person Surgery. Available at https://www.jointcommission.org/assets/1/18/UP_Poster1.PDF. Accessed February 14, 2019.
2. Texas Medical Liability Trust. Medical Errors, Disclosure, and the Role of Apology: A Basic Tool for Physicians. 2015.
