Every surgeon, per medical ethics and legal duty of care, is bound by a code of “do not harm” to the patient. In the case of wrong site surgery, this is a clear violation of “do no harm” or the standard duty of care, or in essence, a clear example of medical negligence. Determining liability in wrong site surgery claims is based on several layers of liability stemming from the original doctor-patient relationship established between the surgeon performing the wrong site surgery and the patient suffering from the wrong site surgery damages.
Liable Parties in Wrong Site Surgery Claims
The most notably liable party in any wrong site surgery claim will be the surgeon making the actual incisions on a patient at the wrong site. This may include a team of surgeons and operating room staffers, including anesthesiologists, nurses, and other medical staff members tasked with actually surgery procedure itself.
In addition, pre-operative care personnel may also be held liable, in certain instances. If the actions, documentation, or instructions made by a pre-operative care staff member in any way furthered the potential of a wrong site surgery to occur, they may be held liable, as well.
One looming question in wrong site surgery claims is that concerning the liability levels of a hospital facility. The answer to this depends on the legal and formal relationship between a given surgeon and the hospital itself. If a surgeon performing the wrong site surgery is an employee, or can be legally construed as an employee of the hospital, the hospital may be held liable. In other cases, if a hospital allows a surgeon to utilize their operating facilities, while knowing a surgeon is incompetent, unfit for duty, or presents any other danger to patient, they may also be held liable for allowing the surgery to occur.
Determining Liability Based on the Universal Pre-Surgery Protocol
Typically, a wrong site surgery stems from a lapse in communication and organization between multiple medical professionals before and during the surgical procedure. If a surgeon and his or her team operate using the standard pre-surgery protocol employed by most hospitals, the following should have occurred to prevent a wrong site surgery, including:
- Pre-surgery verification of the intended procedure to be performed, by multiple members of the surgical staff as well as the surgeon, which will entail over viewing patient’s medical records and confirming the site of an intended procedure
- Marking of the intended surgical site should be done by a medical staff member, who must also be present during the surgical procedure itself and account for the specific needs and expectations of a given patient during the surgical procedure
- Time-out confirmation periods, which occur immediately before an incision is made on a given patient, which require all staff members present to review the intended procedure, the location of the procedure, and confirm these planned actions with one another and appropriate documentation
Getting Legal Help
Following a wrong site surgery, which is a clearly defined example of medical negligence with damages, patients will need to seek the assistance of legal counsel immediately. The claims process and investigating the cause of a given wrong site surgery will require the assistance of an attorney, as well as future legal representation in litigation with named defendants in any legal action.
