A guide for families who have lost a loved one due to medical negligence
Wrong-site surgeries represent one of the most egregious and devastating errors in the medical field, an unthinkable mistake that can alter lives in the blink of an eye. While the immediate consequences often include physical pain, emotional distress, and loss of trust in health care systems, a darker and more tragic outcome can be wrongful death.
If your loved one was the victim of a wrong-site surgery that led to their untimely death, please know that help is available.
While no amount of money can ever make up for the pain of losing someone you love, a wrongful death lawsuit can hold the responsible parties accountable and provide some financial relief for medical bills, funeral expenses and other costs. Pursuing legal action can also serve to prevent similar tragedies from occurring in the future.
If you find yourself facing this devastating situation, consult the knowledgeable and compassionate wrongful death attorneys at Murphy Law Firm.
We can guide you through every step of the legal process and fight for the justice and compensation you and your loved one deserve.
What is wrong-site surgery?
Wrong-site surgery is a type of medical error where a surgical procedure is performed on the wrong body part, the wrong patient, or the wrong side of the body. These mistakes are considered “never events,” meaning they are errors that should never occur in medical practice because they are 100% preventable.
The medical community takes wrong-site surgery very seriously and has implemented a variety of safety measures to minimize the chances of such errors occurring. Despite these precautions, wrong-site surgeries still happen.
How often do wrong-site surgeries occur?
According to the Agency for Healthcare Research and Quality (AHRQ), wrong-site surgeries are relatively rare, estimated to occur in only about 1 in 112,000 surgical procedures. This frequency is low enough that, on average, a hospital would only experience a wrong-site surgery error approximately once or twice a decade.
However, it’s important to note that these statistics only include surgeries that took place in an operating room setting. If surgeries carried out in other settings, like ambulatory and outpatient surgery centers, were also factored into these statistics, the rate would be significantly higher.
In fact, the AHRQ notes that one Veterans Affairs study found that half of wrong-site, wrong-procedure, and wrong-patient surgical errors happened outside of an operating room setting. Therefore, while the base rate appears low, the true incidence is likely much higher when considering all types of surgical procedures.
What are the most common causes of wrong-site surgery?
The causes of wrong-site surgery are often multifactorial and can involve systemic issues in hospitals or surgery centers, human error, and lapses in communication. Some of the most common causes include:
- Inadequate preoperative verification. Failing to thoroughly check and confirm all relevant patient details before the surgery can result in errors. This can include not reviewing medical records, surgical consents or diagnostic reports accurately.
- Failure to follow protocols. Skipping or not adhering to established safety procedures and checklists, such as the “time-out” protocol (in which surgical team members are supposed to pause before initiating the surgery to verify that they’re operating on the correct patient, site and procedure), can increase the risk of errors.
- Communication breakdowns. Miscommunication among medical staff, including surgeons, nurses and anesthesiologists, can lead to wrong-site surgery. This is most likely to occur during hand-offs between different teams or shifts.
- Time pressure. Surgeons and medical teams often work under tight schedules, which can lead to hurried procedures and less time for thorough verification.
- Human error. Simple mistakes, such as misreading a patient’s chart or mislabeling specimens, can lead to wrong-site surgeries.
- Incomplete or missing documentation. Missing or incorrect paperwork, such as consent forms, can contribute to the occurrence of wrong-site surgeries.
- Patient misidentification. Confusing patients with similar names or medical histories can result in surgery being performed on the wrong individual.
- Fatigue or distraction. Medical professionals who are fatigued or distracted may be more prone to making errors, including wrong-site surgeries.
- Lack of leadership or supervision. Inadequate oversight can result in lapses in safety protocols and contribute to wrong-site surgery.
- Complexity of surgery or medical condition. Sometimes, the intricacies of a specific surgery or a patient’s unique medical condition can complicate the procedure and increase the risk of error.
Addressing these factors is crucial for preventing wrong-site surgery and improving patient safety. Medical institutions are supposed to implement rigorous protocols, including multiple checks and verifications, to minimize these risks.
What’s being done to prevent wrong-site surgeries?
One key initiative that’s been widely adopted to combat wrong-site surgeries is the Universal Protocol. The Universal Protocol was developed by the Joint Commission, an organization that accredits and certifies health care organizations in the United States.
The Universal Protocol applies to all surgical and non-surgical invasive procedures and aims to provide a series of checks and verifications to prevent wrong-site, wrong-procedure, and wrong-person surgeries.
Key components of the Universal Protocol include:
- Verifying patient records prior to surgery. Before the surgery, medical staff should verify all relevant documents, such as medical records, imaging studies and surgical consents, to make sure they match the patient and the planned procedure.
- Marking the surgical site. The site to be operated on should be clearly and unambiguously marked, usually by the person who will perform the operation. This helps to ensure that the surgical team is all on the same page about where the surgery is to take place.
- Involving the patient. Whenever possible, the patient is involved in the verification process to confirm their identity, the intended procedure and the surgical site. This provides an extra layer of safety.
- Documenting the procedure. Thorough record-keeping is essential, both to comply with the Universal Protocol and to provide a clear trail of what verifications were made.
- Encouraging team communication. The Universal Protocol also emphasizes the importance of open communication among all members of the health care team, including the surgical team, nursing staff, anesthesiologists and administrative personnel.
- Taking a time-out. Just before the surgery begins, the entire surgical team performs a “time-out” to verify the correct patient, procedure and surgical site. During this time-out, each member of the team has the opportunity to speak up if they notice any discrepancies or have concerns.
- Reviewing mistakes and making adjustments. Hospitals are encouraged to analyze any incidents of wrong-site surgeries to identify contributing factors and improve protocols.
By following the Universal Protocol, health care providers aim to significantly reduce the risk of wrong-site surgeries. It acts as a final safety net, catching errors that may have slipped through earlier checks.
How can wrong-site surgeries lead to wrongful death?
Although there are numerous complications that can occur because of a wrong-site surgery, undoubtedly, the most serious is wrongful death. These devastating medical errors often lead to a cascade of life-threatening issues that compromise a patient’s chances for survival.
Below are some ways in which wrong-site surgeries can lead to wrongful death:
- Organ failure. Surgery on the wrong organ can result in the failure of that organ, requiring additional surgeries or leading to fatal complications.
- Infection. Any surgery carries the risk of infection, but when an unnecessary surgery is performed on the wrong site, it opens up additional avenues for severe infection that can be fatal if not treated promptly.
- Anesthesia complications. Unnecessary administration of anesthesia for a wrong-site surgery can lead to a host of problems, including allergic reactions or anesthesia overdose.
- Delay in necessary treatment. Operating on the wrong site wastes critical time that could be used to treat the actual medical issue, potentially causing the original condition to worsen and become life-threatening. For example, if a surgeon performs a mastectomy on the wrong breast in a cancer patient, the cancer may have time to spread before the correct breast is operated on.
- Multiple surgical interventions. The need for additional surgeries to correct the mistake increases the risks associated with anesthesia and surgical complications, adding more opportunities for something to go fatally wrong.
- Wrong medication or treatment. Wrong-site surgery might also be accompanied by the administration of incorrect medications or treatments, leading to adverse reactions or complications that could be fatal.
- Interaction with pre-existing conditions. If the patient has other existing medical conditions, the complications from the wrong-site surgery may worsen those conditions, leading to a fatal outcome.
- Psychological impact. The stress and trauma of undergoing a wrong-site surgery can exacerbate existing conditions or create new complications, both of which can be life-threatening.
Given the serious nature of wrong-site surgeries and the complex needs of surgical patients, there is a real risk that such errors could lead to wrongful death, either directly or indirectly. In such cases, the affected parties can choose to pursue a wrongful death lawsuit to hold the responsible health care providers accountable for their actions.
How do you prove fault in a wrong-site surgery lawsuit?
Wrong-site surgeries almost always result in medical malpractice claims. Malpractice is a subcategory of tort law that governs personal injury lawsuits.
To recover compensation, a personal injury lawyer for a malpractice claimant has the burden to prove the following elements:
- The plaintiff’s health care provider owed a duty of care to the plaintiff;
- The defendant breached that duty of care;
- The defendant’s breach of their duty of care was the proximate cause of the harm to the plaintiff; and
- The plaintiff suffered damages from the harm caused by the defendant.
The duty of care owed by a doctor or health care provider is typically defined as the standard of care that a person with similar credentials would reasonably perform under comparable circumstances.
The plaintiff must prove all of those elements by a preponderance of the evidence. That means that the jury must find that there is a 51% likelihood that all of the elements are proven.
Who is liable for wrong-site surgery?
In a wrong-site surgery case, multiple parties may be held liable, depending on the circumstances surrounding the error. Here are some of the potential parties that could be considered responsible:
- Surgical team members
- Radiologists or diagnostic staff
- Consulting physicians
- Nursing staff involved in preoperative preparation
- Hospitals or medical facilities
Determining liability often involves a detailed investigation to understand how the error occurred and who was responsible. Legal action may target one or more of these parties based on the specifics of the case.
What types of compensation are available through a wrongful death lawsuit?
Wrongful death compensation involving medical malpractice falls into 3 categories:
This category includes quantifiable financial losses, usually measured in dollars.
Examples include medical expenses incurred before the victim’s death, funeral and burial costs, and loss of the victim’s expected earnings. For medical malpractice cases, these damages are capped at $250,000.
These are more subjective and harder to quantify in monetary terms.
They can include compensation for the emotional pain and suffering experienced by the surviving family members, loss of companionship, and loss of care, guidance, and nurturing that the deceased would have provided.
Unlike economic and noneconomic damages, punitive damages are not intended to compensate the plaintiff. Instead, they are meant to punish the defendant and deter them, as well as third parties, from engaging in similar conduct in the future. Punitive damages are relatively rare and are usually only awarded in cases where the defendant’s conduct was egregiously reckless or malicious. These damages are capped at $10 million or 3% of the defendant’s net worth, whichever amount is less.
How long do I have to file a wrongful death lawsuit in Montana?
In the state of Montana, you generally have 3 years from the date of the decedent’s death to file a wrongful death lawsuit, according to Montana’s statute of limitations. Failure to file within the statutory time limit could result in the loss of your right to seek compensation.
Get help from an experienced Great Falls wrongful death attorney
At Murphy Law Firm, we understand that the loss of a loved one is an unimaginable tragedy, made even more difficult when the death was preventable. While nothing can bring back your loved one, seeking justice can help bring some closure and financial stability during this heartbreaking time.
With more than 75 years of combined experience, the Montana wrongful death attorneys at Murphy Law Firm are committed to guiding you compassionately through every step of the legal process. You don’t have to face this daunting journey alone; let us help you hold the responsible parties accountable.
Contact us today to set up a free consultation to discuss your case and explore your legal options. We’re here to support you every step of the way.