Texas Medical Malpractice: Wrong-Site Surgery and Other Surgical Errors

August 24, 2012 (Press-News.org) The news in Texas and across the country is replete with scary stories about surgical mistakes like removing the wrong limb or organ; failing to follow accepted medical procedures for operations, causing unnecessary and potentially serious injuries; or even operating on the wrong patient.

Wrong-Site and Wrong-Side Surgery

According to the Washington Post, the Joint Commission that accredits U.S. hospitals estimates that so-called "wrong-site" surgery happens nationally about 40 times every week, and that the rate of voluntarily reported cases to the commission is rising steeply. Rates are apparently increasing despite regulatory measures taken by the commission, although the commission's efforts may have slowed the rate of increase.

Specifically, since July 1, 2004, the commission requires accredited medical facilities to comply with its Universal Protocol for Preventing Wrong Site, Wrong Procedure and Wrong Person Surgery. In fact, the commission calls such basic mistakes "never events" that should not ever occur.

The Universal Protocol mandates that a surgeon and his or her team observe detailed preventative practices, most importantly "preprocedure verification, site marking, and a time out." The protocol has broad support from medical professionals, who provided thousands of comments in its development.

Basically, the protocol and evolving understanding of best practices foster an atmosphere where medical staff members are encouraged to speak up immediately if they sense potential safety problems; doctors affirmatively mark surgical sites themselves after carefully examining medical records; internal education and training surrounding this issue are stepped up; checklists are incorporated; and the surgical process is done with mindfulness and without rushing. In a nutshell, double-check, then check again.

As an additional incentive for medical professionals to take precautions, many insurance companies and the federal Medicare program do not pay for wrong-site surgeries.

The Washington Post article describes some egregious examples. In one, the wrong side of a teen boy's brain was operated on causing brain damage and mental illness. In another, a doctor performed a surgical procedure on the wrong eye of a toddler.

It's Happening in Texas

A quick perusal of actual Texas state court medical malpractice suits for negligent or unnecessary surgery reveals these types of allegations:
- That a surgeon who performed a negligent laparoscopic procedure to repair an internal hernia cut the patient's bowel during the surgery and failed to fix the hernia
- That improper body positioning during or after gynecological surgery caused a brachial plexus injury that prevented the patient from moving her arm because of nerve damage to her back
- That a total knee replacement that was performed was unnecessary considering the severity of the knee problems
- That gallbladder removal was premature when the relatively brief symptoms could have been caused by problems with other body systems and certain medical findings were not made
- That during back surgery, the surgeon unknowingly cut an artery that led to a fatal, massive hemorrhaging, and that the medical staff failed to recognize clear medical signs of the internal bleeding
- That knee surgery was performed on the wrong knee
- That surgery to remove a lump on a patient's back was negligently performed on the wrong location

Medical Malpractice Lawsuits for Botched Surgery in Texas

Texas law calls medical malpractice and medical negligence claims "health care liability suits," which are based on and governed by extensive statutory provisions, as well as Texas common law (court-made law). Broadly, physicians and other medical practitioners have a duty to their patients to adhere to accepted medical standards, and when this duty is breached, causing injuries or death, responsible medical personnel may be accountable in health care liability suits.

Potential damages in a Texas medical malpractice case may include medical bills, pain and suffering, lost past and future wages, and more.

If, in the course of the medical malpractice at issue, the physician or other medical defendant acted not just negligently, but exhibited behavior considered worse, like a malicious, fraudulent or grossly negligent act, that defendant may also be liable for punitive damages, meant not to reimburse the victim for any particular monetary loss, but rather to punish the defendant and deter others from behaving similarly in the future.

Texas is a state that has adopted in its statutory scheme for medical malpractice certain caps on damage amounts. For example, noneconomic damages (those for harms on which it is difficult to place a monetary value like pain, mental distress and loss of the enjoyment of life) are capped, as are most damages in medical malpractice wrongful death lawsuits.

Texas medical malpractice law is very complex and anyone affected by a wrong-site surgery or other medical mistake should speak with an experienced medical malpractice attorney as soon as possible, as there are deadlines for bringing legal claims.

Article provided by The Law Offices of David McQuade Leibowitz, P.C.
Visit us at www.leibowitzlaw.com