Articles Posted in Surgical Errors

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A woman suing a doctor, a physician’s assistant (“PA”), and a surgical center for malpractice, as a result of receiving an operation on the wrong knee, is entitled to partial summary judgment on the issue of liability, according to a Bronx judge.

Following an automobile accident, the plaintiff sought treatment from Dr. Hostin, an orthopedic surgeon, for a torn meniscus and a partial ACL tear in her right knee. Prior to the surgery, the doctor initialed the plaintiff’s right knee and then left to care for another patient who’s surgery was scheduled just prior to the plaintiff’s. When the plaintiff awoke from anesthesia, she realized that the surgery had been performed on her left knee, instead of the intended right one.

According to court papers, Dr. Hostin, after finishing the other patient’s surgery, entered the operating area and saw that surgery had already been started by his PA. A camera had been previously inserted under the plaintiff’s kneecap and the doctor saw a torn meniscus in the live video, so he decided to direct the PA on how to complete the procedure. Dr. Hostin did not realize the mistake until after completion of the wrong-site surgery.

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According to a paper published in the new issue of the Journal of the American Medical Association, more than one in four doctors in the early stages of their careers have signs of depression, and their patients – now and in the future – may suffer because of it.

The findings come from an investigation of 50 years’ worth of studies, published between January 1963 and September 2015, that looked for depression symptoms in more than 17,500 medical residents. Their analysis revealed that the percentage of residents with possible depression ranged from 20 to 43 percent, resulting in an average of 29% physicians-in-training with depression or depressive symptoms.  By way of comparison, in 2013 the National Institute of Mental Health reported that about 6.7% of all U.S. adults had at least one major depressive episode during the previous year.

According to Srijan Sen, M.D., Ph.D., senior author of the study and a member of the University of Michigan’s Depression Center, depression obviously negatively impacts the doctors-in-training themselves, but it also affects patient care, as mental health issues are linked to medical errors. Indeed, it could interfere with attention and focus, the development of the doctor-patient relationship, and result in a resident physician less engaged or interested in a patient’s care – inevitably resulting in errors. The prevalence of depressive symptomatology and disease in physicians-in-training is a significant and important indication of a system in need of change.

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A jury in New Haven Connecticut recently awarded a 58-year-old man $4.2 million for an injury incurred during a surgical procedure that was the result of a doctor’s misdiagnosis.

In December 2008, plaintiff visited the doctor for treatment of a swollen lymph node on the side of his neck. According to the suit, the doctor misdiagnosed what was really a mild Bartonellosis bacterial infection, also known as “cat scratch disease,” and instead recommended surgery to remove the lymph node. Then, during the procedure, the doctor damaged plaintiff’s spinal accessory nerve, causing permanent catastrophic injuries to plaintiff’s left shoulder.

Besides misdiagnosing plaintiff’s case entirely, the surgeon botched the surgery. According to the suit, plaintiff now has nerve palsy, permanent disfigurement of his left shoulder, an inability to extend that arm or raise it above his head, permanent numbness and pain, and he can no longer work at his job without considerable difficulty.

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According to a recent study, medication errors or adverse drug events occurred in about half of all surgeries done at one of the nation’s most preeminent hospitals.  Specifically, over the course of an eight-month period in 2013-2014, researchers observed randomly selected operations at Boston’s Massachusetts General Hospital (“MGH”), and documented every drug given immediately before, during, and after the surgery.

“We knew that medication errors were common,” said Syracuse medical malpractice attorney Michael A. Bottar, “but the results of the study were startling.” During 124 of the 277 observed operations (i.e., 45%), researchers noted at least one medication error or drug-related incident that harmed a patient.  More than one-third of the observed errors injured patients, including three life-threatening mistakes.  Two of the life-threatening mistakes were caught by the operating room staff and one was intercepted by researchers.

The most frequently observed errors were:

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“A sponge was left inside our client for nearly one year,” said Syracuse medical malpractice lawyer Michael A. Bottar, Esq., an attorney representing the patient and his family. “We believe it was a laparotomy sponge measuring nearly 12 inches by 18 inches. That’s the size of a kitchen dish towel. And it had a radio-opaque strip woven into the fabric so it should have been identified on a post-operative xray — had a study been ordered. The surgical team forgot that too. This was a complete comedy of errors.”

A retained surgical sponge is an avoidable mistake. To leave a sponge behind is either the result of surgical malpractice or nursing negligence. This is because surgeons and operating room nurses are supposed to know exactly how many sponges are used during a procedure and should not close until the sponge count is correct. “Ten in, ten out,” Bottar added.

Surgeons have an independent duty to check the abdominal cavity for sponges, even if advised by the nursing staff that that all sponges have been counted. This is because sponges and pads are known to stick together so a nurse, thinking that one sponge has been handed to a surgeon has actually handed over two. When one sponge is counted at the end of the procedure, it appears that the count is correct.

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As Syracuse medical malpractice lawyers, the Bottar Law, PLLC legal team frequently handles cases where surgeons fail to properly count and remove surgical instruments and/or supplies from a patient. Common examples of surgical instruments left in the abdomen after surgery include sponges, pads, towels, needles, clips and clamps. Most of the time, sponges are left behind during abdominal surgery (55%) and vaginal deliveries (16%).

When a surgical instrument is left behind, it is typically the result of negligence on the part of the surgeon or the operating room nursing staff. This is because a surgeon should not close a patient until s/he knows that the surgical “count” is correct. Meaning, if ten sponges and two clamps were used during surgery, the surgeon should not close the surgical site until s/he knows that the sponges and clamps are accounted for. When counts are incorrect, the surgeon should look for the missing items before closing. If they cannot be found by visual inspection, then radiographs should be ordered. Most surgical instruments are embedded with a thin wire that is visible on an x-ray.

Often, due to fatigue by a member of the surgical team, which includes the surgeon and operating room nurses, the count will appear correct when it is not. The most common reason for an inaccurate count is when sponges or pads stick together. In that instance it looks like one pad was used when, in fact, two pads were used. Since no one in the operating suite would be on the look-out for the second pad, it may be left behind.

In 2000, the AORN Recommended Practices Committee stated that sponges should be counted five times during a procedure: (1) before the procedure starts (to determine how many sponges are in the suite); (2) before closure of the cavity; (3) before closure of the wound; (4) at skin closure; and (5) when the scrub nurse or circulating nurse permanently breaks scrub.

There are many complications associated with a retained surgical instrument, including pain, infection, organ perforation, and death.
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Syracuse University Hospital mistakes were the focus of a 68 page report generated by the New York State Department of Health (“DOH”). The DOH is an agency charged with oversight of medical care in the State of New York, including events that may give rise to claims for medical malpractice, failure to diagnose, birth injury, infection and wrongful death. The full report is available here.

According to Syracuse hospital mistake lawyer Michael A. Bottar, Esq., the report cited University Hospital for several violations of state regulations — one of which was an incident where a student doctor known as a “medical resident”, overseen by an unqualified attending physician, performed a complex operation on a patient’s spine because the neurosurgeon was busy in another operating room.

Syracuse surgery mistake lawyer Anthony S. Bottar, Esq., noted that the DOH, in its Statement of Deficiencies and Plan of Correction, found shortcomings in doctor performance, patient safety, quality of care and infection control practices.

In another aspect of the report, University Hospital was cited for the apparent absence of a “time out” during a surgical procedure, which is a process where surgical staff stop and verify that they have the correct patient in the operating room and are about to operate on the correct body part. The “time out” process is intended to prevent surgical errors, such as wrong-site surgery – like in 2004 – when a Syracuse surgeon about to remove a blood clot made an incision on the wrong side of an infant’s head, as well as wrong-side surgery – like in 2006 – when a Syracuse surgeon operated on the wrong side of a patient having a tumor removed from an adrenal gland. During the latter procedure, the surgeon failed to review radiological films.

Poor medical controls and oversight may also cause or contribute to a medical misdiagnosis, which we blogged about here.
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Last week, Utica neurosurgeon Frank Boehm, Jr., pleaded guilty to possessing and intending to distribute prescription drugs. According to the U.S. Department of Justice, the Utica surgeon faces up to 20 years in prison and a one million dollar fine. As part of his plea, Dr. Boehm acknowledges that he was responsible for distribution of 58 grams of OxyContin-based drugs.

Dr. Boehm was licensed to practice medicine in the State of New York in 1985. At times during his career, he was on the medical staff at Faxton St. Luke’s Healthcare and St. Elizabeth Medical Center, and was employed by Slocum-Dickson Medical Group in New Hartford. Dr. Boehm’s medical record includes two “above average” medical malpractice settlements in 2005 and one “average” medical malpractice settlement in 2007. The details of those cases and settlements, which are not an admission of malpractice, are confidential.

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Syracuse medical malpractice lawyer Anthony S. Bottar, managing partner of Bottar Law, PLLC, one of Upstate New York’s oldest law firms with a practice limited to medical malpractice, wrongful death, birth injuries, work injuries, brain injuries, and product/premises liability, was elected president of the New York State Academy of Trial Lawyers, an organization dedicated to protecting, preserving and enhancing the civil justice system.

The New York State Academy of Trial Lawyers boasts a membership of more than 1400 judges, law clerks, law firms, lawyers, paralegals and law students, including: Syracuse medical malpractice lawyers handling cases concerning stroke misdiagnosis, failure to diagnose cancer and failure to prevent a heart attack; Syracuse work injury lawyers handling cases concerning construction site accidents, scaffolding accidents and injuries caused by a fall from a height; Syracuse birth injury lawyers handling cases concerning fetal hypoxia and ischemia, cerebral palsy and Erb’s palsy; Utica brain injury lawyers handling cases concerning concussions, post-concussion symdrome and TBI; Watertown medical malpractice lawyers handling cases concerning Samaritan Medical Center negligence and Fort Drum physician mistakes; and Watertown injury lawyers handling New York State Thruway accidents.

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A press release issued by Auburn Memorial Hospital advertises that “iSuites” will enhance surgical safety and decreases incidents of medical malpractice and hospital mistakes.

According to Scott A. Berlucchi, President/COO of Auburn Memorial Hospital, the new surgical suites will be equipped with specialized lighting booms and television monitors, in order to enable surgeons to better control the configuration of the operating room. The new technology will also permit storage and recall of surgical imagery (photos and video taken during surgery). The iSuites are also expected to make the hospital more profitable and efficient, in that the operating rooms can be modified quickly to accommodate a multitude of surgeries.
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