Wrong-Site Surgery and Liability: Who is at Fault?

Two doctors discussing a wrong-site surgery. Who is at fault?

Wrong-site surgery is a shocking deviation from the expected standard of care and one of the most egregious examples of medical malpractice. For the victims of wrong-site surgery, the consequences may be life-altering. As such, you or a loved one impacted by wrong-site surgery may be seeking to begin a medical malpractice case. The medical lawyers in Philadelphia at Raynes & Lawn represent victims of wrong-site surgery and advocate for them to recover full compensation for their losses.

This article will help you determine if you have a wrong-site surgery case, who is liable, and give you some insight on how to proceed.

What is Considered Wrong-Site Surgery?

Wrong-site surgery, a subset of medical malpractice, is a grave error that can have devastating consequences for patients. It involves a surgeon operating on the wrong part of a patient’s body, which may include the wrong side, limb, or organ. While these occurrences are fortunately rare, they highlight significant lapses in the healthcare system’s safety protocols.

An example of wrong-site surgery is a neurosurgeon performing a procedure on the wrong side of the brain or a kidney being removed instead of a gallbladder. The latter case actually happened in 2006 at Milford Regional Medical Center in Massachusetts. The doctor claimed to have misread the lab results.

A study from 2022 led by The Joint Commission looked at 68 cases of wrong-site surgery between 2013 to 2020. Many wrong-site surgery claims were for urology (8.8%), neurosurgery (22.1%), and orthopedic (35.3%), with the most common procedure being spinal fusion and excision of an intervertebral disc at 22.1%. 60% of the cases were settled and had an average indemnity of $136,452.84.

In orthopedic surgery, wrong-side surgery is more common. Wrong-side surgery is a specific type of wrong-site surgery. It occurs when the surgical procedure is performed on the incorrect side of the body or limb, involving a mix-up of right and left, such as operating on the right arm instead of the left or vice versa. Wrong-side surgery is a subset of wrong-site surgery, focusing specifically on laterality errors. An example would be when an operation on the right knee is mistakenly performed on the left knee.

Pre-Surgical Procedures and Wrong-Site Surgery

Hospitals have established rigorous procedures to safeguard against wrong-site surgery, aiming to make surgical mistakes nearly impossible. These protocols encompass pre-surgical, intra-surgical, and post-surgical steps, with multiple healthcare professionals involved in verification processes. Despite these safeguards, wrong-site surgeries still occur, raising questions about what goes wrong in the system.

Factors Leading to Wrong-Site Surgery

There are several factors that may contribute to wrong-site surgeries, including:

  • Inadequate controls
  • Over-reliance on surgeons
  • Time pressure
  • Emergency procedures
  • Unusual positions
  • Inadequate training
  • Continuum of care

Let’s look at each of these factors in more detail:

Inadequate Controls

Wrong-site surgeries often find their roots in healthcare facilities with inadequate controls and checks in place to prevent such errors. These controls encompass a wide array of protocols, processes, and systems crucial for ensuring surgical accuracy. When these measures are lacking or not robust enough, the stage is set for confusion and miscommunication. This increases the risk of operating on the wrong site.

Over-Reliance on Surgeons

In certain scenarios, surgical teams may place an excessive burden of responsibility on the surgeon alone to identify and confirm the correct surgical site. This reliance on a single individual, while surgeons undoubtedly play a critical role, can be risky. Surgical teams function most effectively when they operate as cohesive units, with multiple layers of verification in place to minimize the potential for errors.

Time Pressure

The fast-paced nature of surgical environments often imposes significant time constraints on surgical teams. Every moment is precious in surgery, and the pressure of doing things within a set timeframe is high. Even if the surgery itself is not critical, there may be a need to promptly complete the current procedure to accommodate subsequent procedures. Under such conditions, the heightened urgency may lead to rushed decision-making, inadvertently causing essential verification steps to be skipped.

Here is an example: A patient undergoing an orthopedic surgery is rushed through the verification process to ensure all other patients are seen on time. As a result, the nurses verifying the site that is to be operated upon overlooks the marks, and the patient ends up with surgery done on the wrong-side.

Emergency Procedures

Medical facilities frequently encounter situations that demand emergency surgeries, often stemming from critical patient conditions requiring immediate intervention. These unplanned procedures can create additional strain when combined with scheduled surgeries, pushing surgical staff and resources to their limits. As the demand for surgical care surges, the risk of oversight and confusion regarding surgical sites also increases.

Unusual Positions

Certain surgical procedures necessitate patients to be positioned in unconventional or non-standard ways. These atypical positions can introduce complexities and challenges into the surgical process. Surgeons and their teams must adapt to these unique scenarios, sometimes contending with unfamiliar angles or orientations. Failing to make appropriate adjustments and confirm the surgical site correctly in these situations can be a contributing factor to wrong-site surgeries.

For example, during complex spinal surgery, a patient may need to be positioned in an unusual way, such as facedown or in a lateral position. These unconventional positions can present challenges in identifying the correct surgical site.

Inadequate Training

The importance of comprehensive and ongoing training for healthcare staff involved in surgical procedures cannot be overstated. Inadequate training, whether due to staffing problems or other reasons, can lead to critical oversights in the surgical process. Medical professionals must stay current with best practices and protocols, ensuring they possess the necessary skills and knowledge to prevent wrong-site surgeries.

Continuum of Care

The process of providing medical care to a patient spans from initial diagnosis to post-operative recovery. Issues can emerge at any point along this continuum, potentially contributing to wrong-site surgeries. Problems in communication, documentation, or handoffs between healthcare providers during transitions of care can lead to misunderstandings and misinterpretations of patient information. These issues may ultimately result in a failure to correctly identify the intended surgical site. Ensuring a seamless continuum of care is essential for minimizing the risk of wrong-site surgeries and ensuring patient safety.

Res Ipsa Loquitur and Wrong-Site Surgery

In the legal context, the principle of “Res Ipsa Loquitur,” a Latin phrase meaning “the thing speaks for itself,” is particularly relevant to wrong-site surgeries. This doctrine implies that an event is so obviously a result of negligence that it requires no further explanation. Because of Res Ipsa Loquitur, wrong-site surgeries are often deemed “never” events, meaning they should never occur if established procedures are followed diligently. Essentially, the principle of Res Ipsa Loquitur will shift the onus of establishing medical negligence away from the victim to the healthcare provider. They will be the ones who have to disprove possible wrongdoing.

Significance of Res Ipsa Loquitur

Typically, in medical malpractice claims, the burden of proof falls upon the plaintiff. When Res Ipsa Loquitur comes into play, the plaintiff no longer has to prove that the healthcare provider was negligent once the three following criteria has been met:

Negligence was Directly Responsible for Harm

It must be demonstrated that the harm suffered by the patient would not have occurred in the absence of negligence. In cases of egregious medical errors, such as surgical instruments left inside the patient’s body or operating on the wrong limb, this criterion is usually easily met.

If your specific case involves more intricate circumstances where common knowledge cannot be used to establish a relationship between negligence and the harm caused, then an expert (or experts) must be enlisted. In the event you are unsure about the complexity of your case, connect with an experienced medical malpractice attorney in Philadelphia, like those at Raynes & Lawn. A lawyer will be able to analyze your case to see what is required to get you the compensation you deserve.

The Harm Occurred Under the Care of the Healthcare Provider

This criterion implies that the defendants in a medical malpractice lawsuit must have had a significant degree of control over the situation, to the extent that their negligence emerges as the most plausible cause of the plaintiff’s injuries.

In the context of surgical errors, the concept of exclusive control is seldom a contentious issue. Surgical procedures, by their nature, entail isolating the patient from all individuals except the healthcare providers directly involved in the operation.

The Injured Party Did Not Contribute to the Harm Caused

The injured party must establish that they did not contribute to the harm through their actions or decisions. In most surgical and medical procedure scenarios, the injured patient bears no fault. Nevertheless, when multiple potential causes of an injury exist, including factors stemming from the patient’s own actions, courts have generally held that negligence by the healthcare provider need not be the sole explanation for the harm. It suffices for their negligence to be the most likely cause.

Who is Liable in Wrong-Site Surgery Cases?

Establishing liability in cases of wrong-site surgeries necessitates a meticulous examination of the parties responsible for the errors. Given the comprehensive nature of pre-surgical checks and verifications, several individuals and entities may share liability in these cases:

Surgeon Who Performed the Procedure

The primary individual held accountable in wrong-site surgery cases is the surgeon responsible for conducting the procedure. Surgeons bear a significant responsibility, including cross-checking medical records, coordinating with the surgical team, and ensuring the incision is made at the correct site. Failure to fulfill these responsibilities can result in the surgeon’s liability for the patient’s injuries and losses.

The surgeon’s employment status can influence the healthcare facility’s potential liability. Hospitals typically carry vicarious liability for the negligence of their employed surgeons, potentially sharing liability in cases involving these in-house physicians. In contrast, if the surgeon is an independent contractor, they assume primary liability, with their medical malpractice insurance covering any resulting claims.

Nurses and Other Medical Staff Involved in the Procedure

Wrong-site surgeries often involve a series of mistakes that may initiate with the medical staff responsible for pre-surgical procedures. Nurses and other staff members may inadvertently mark the wrong site on the patient’s body or fail to verify the accuracy of the markings. Surgeons, too, may overlook discrepancies between the patient’s chart and the marked site, ultimately culminating in a wrong-site surgery.

Investigating wrong-site surgery claims entails a meticulous examination of each staff member’s role within the surgical process. When nurses and other medical staff are employees of the hospital, the healthcare facility may share vicarious liability for their negligence.

Hospital or Facility Where the Procedure Took Place

Hospitals and medical facilities bear significant responsibility for patient safety, including the prevention of wrong-site surgeries. As previously discussed, hospitals are vicariously liable for the negligence of their employees while on duty. This signifies that a hospital where a wrong-site surgery occurs can be held liable for the actions of staff members involved in the incident.

In certain cases, a hospital may also face direct liability. This can arise if the facility lacks adequate pre-surgical protocols, fails to ensure compliance with safety measures, or negligently contracts with an incompetent surgeon despite prior knowledge of their inadequacies. Pursuing a legal claim against the hospital may offer the victim the opportunity to secure more substantial compensation than pursuing a claim against the surgeon in isolation.

Possible Damages in a Wrong-Site Surgery Case

In the aftermath of a wrong-site surgery, the toll on the victim can be profound, encompassing not only physical injuries but also emotional and financial burdens. Understanding the range of damages that can be pursued in a wrong-site surgery case is essential for both plaintiffs and their legal counsel as they seek justice and redress for the harm endured. Damages in these cases span both economic and non-economic losses, each demanding comprehensive consideration:

Past and Future Medical Costs

A pivotal component of damages in wrong-site surgery cases involves the financial burdens inflicted on the victim. This encompasses not only the immediate medical expenses associated with the wrong-site surgery but also the costs of any subsequent corrective procedures. Victims may require additional surgeries to rectify the initial error, extensive rehabilitation, and ongoing medical care. These costs can mount significantly over time, warranting compensation for both past and future medical expenses.

Lost Wages

Wrong-site surgeries can disrupt a victim’s ability to work and earn a livelihood. Lost wages encompass the income that the victim would have earned had they not been incapacitated by the surgery’s repercussions. This category of damages seeks to restore the financial stability of the victim by compensating for the income they were unable to generate during their recovery period or any long-term disability resulting from the malpractice.

Physical Pain and Suffering

The physical pain and suffering endured by victims of wrong-site surgery can be excruciating and debilitating. These damages aim to provide compensation for the acute physical anguish experienced due to the surgery error. They also encompass the ongoing pain and discomfort that may persist throughout the victim’s life, affecting their daily activities and overall quality of life.

Disfigurement and Scarring

Wrong-site surgeries can lead to visible disfigurement and scarring, which can cause profound psychological distress in addition to the physical consequences. Victims often experience emotional anguish and self-esteem issues due to the permanent alterations to their appearance. Damages for disfigurement and scarring aim to provide compensation for these emotional and psychological burdens.

Psychological Trauma

The psychological trauma resulting from a wrong-site surgery can be enduring and severe. Victims may experience anxiety, depression, post-traumatic stress disorder (PTSD), and other mental health challenges. Compensation for psychological trauma seeks to address the emotional toll of the malpractice, helping victims access the necessary counseling and treatment to cope with their mental health issues.


In some instances, wrong-site surgeries can result in long-term or permanent disabilities. These disabilities can affect the victim’s ability to perform daily tasks, pursue their chosen career, or engage in activities they once enjoyed. Damages for disability aim to provide financial support to accommodate the challenges and limitations imposed by the disability.

Reduced Ability to Enjoy Life

The consequences of a wrong-site surgery can extend beyond physical pain and disability to impact the victim’s overall enjoyment of life. Victims may be unable to participate in hobbies, activities, or social interactions as they did before the surgery. Damages for the reduced ability to enjoy life acknowledge the intangible losses experienced by the victim due to the malpractice.

Other Losses

Wrong-site surgeries can result in various other losses, depending on the unique circumstances of each case. These may include loss of consortium (impairment of the victim’s relationship with their spouse or partner) or a loss of earning capacity. Out-of-pocket expenses related to the malpractice are also considered.

Punitive Damages

In cases where the defendant’s actions are deemed particularly egregious, punitive damages may be pursued. These damages serve as a punitive measure, aiming to punish the defendant for wanton or willful conduct and deter future negligence. Importantly, punitive damages are typically capped at a percentage of the plaintiff’s compensatory damages, often not exceeding 200%.

Contact the Philadelphia Medical Malpractice Lawyers of Raynes & Lawn

Wrong-site surgery is one of the most blatant forms of medical malpractice. Despite rigorous protocols and established safety measures, these “never events” continue to occur. Fortunately, these kinds of claims are often bolstered by the principle of Res Ipsa Loquitur.

If you or a loved one has suffered the trauma of wrong-site surgery, it is crucial to seek the counsel of experienced legal professionals who specialize in medical malpractice cases. At Raynes & Lawn, our dedicated team of Philadelphia medical malpractice attorneys boasts over 50 years of expertise in protecting the rights of malpractice victims. We understand the complex nuances of these cases and are committed to fighting for the justice and compensation you deserve.

Take action today by calling 1-800-535-1797 to schedule your free case evaluation. Let us stand by your side. We will advocate for your rights, and work tirelessly to ensure that those responsible are held accountable for their actions.

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