Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

The definition of a nanosecond is the interval between removing the surgical drapes after a procedure and the realization you operated on the wrong side. Another nanosecond later, a bead of sweat forms on the surgeon’s forehead. Not long after, colleagues and personnel in the operating room are aware.  

On September 10, 2019, Patient C.F. was scheduled to have a left testicle varicocelectomy.

This procedure addresses enlarged veins around the testicle, in this case, on the left side. Varicocelectomy is often performed to address male infertility, though there may be other reasons.  

After speaking with the patient, the surgeon, a Tampa urologist, marked the right testicle just before the procedure.  

During the procedure, the urologist realized the patient had actually consented to a left-sided procedure.  

Rut roh! 

While the patient was still sedated, the correct procedure, a left varicocelectomy, was performed. 

This case morphed into a Board investigation. The surgeon received a letter of concern, a fine of $2,500, and had to reimburse the Board for $2,045 for the cost of the investigation. He also had to take a five-hour course on risk management or attend 8 hours of board disciplinary hearings (for what purpose, who knows?). Finally, he needs to give a one-hour lecture on wrong-site surgeries at a board-approved medical facility.  

First, from a medical perspective, not all wrong-sided surgeries are the same. Removing a varicocele is not the same as removing a testicle for associated pathology. If you remove the wrong testicle, then go back to remove the correct testicle, you’ve committed the patient to lifelong hormone replacement therapy. If you remove the wrong kidney, then go back to remove the correct kidney, you’ve committed the patient to dialysis. In the grand scheme of things, the above-referenced patient’s outcome could have been worse. A lot worse. Of course, that may be cold comfort to the surgeon in a medico-legal proceeding. But it matters. 

Next, do you believe only “bad surgeons” operate on the wrong side? If you do, you’d be wrong. It could happen to ANY of us. 

Not too long ago, in the New England Journal of Medicine, a hand surgeon at Mass General Hospital, Harvard’s teaching hospital, described operating on the wrong side – an obvious mistake. He described how it happened and how to prevent this from happening again. This should be required reading for all physicians. Ring DC, Herndon JH, Meyer GS. Case 34-2010: A 65-Year-Old Woman with an Incorrect Operation of the Left Hand. N Engl J Med 2010; 363: 1950-7. 

Finally, I’ll wager a bet. Once a surgeon has operated on the wrong side, that surgeon will never make the same mistake going forward. No one is going to beat up the surgeon more than the surgeon himself. Once it happens to you, you do what you can to avoid being a surgeon who could make that mistake twice.  

The best ways to prevent such errors are the obvious. Check and double-check the patient, the side, and the level. Stop and take a break (time out). Make sure all in the room are empowered to speak up.  

Protocols for OR safety have lagged behind the airline industry.  

Protocols for airline safety changed dramatically after two Boing 747’s collided at Los Rodeos Airport in the Canary Islands.

A terrorist incident at Gran Canaria Airport had caused many flights to be diverted to Los Rodeos, including the two aircraft involved in the accident. The airport quickly became congested with parked airplanes blocking the only taxiway and forcing departing aircraft to taxi on the runway instead. Patches of thick fog were drifting across the airfield; hence visibility was greatly reduced for pilots and the control tower.  

The collision occurred when the KLM airliner initiated its takeoff run while the Pan Am airliner, shrouded in fog, was still on the runway and about to turn off onto the taxiway. The impact and resulting fire killed everyone on board KLM 4805 and most of the occupants of Pan Am 1736, with only 61 survivors in the front section of the aircraft.  

The subsequent investigation by Spanish authorities concluded that the primary cause of the accident was the KLM captain’s decision to take off in the mistaken belief that a takeoff clearance from air traffic control (ATC) had been issued. Dutch investigators placed a greater emphasis on a mutual misunderstanding in radio communications between the KLM crew and ATC, but ultimately KLM admitted that their crew was responsible for the accident and the airline agreed to financially compensate the relatives of all of the victims.  

The disaster had a lasting influence on the industry, highlighting in particular the vital importance of using standardized phraseology in radio communications. Cockpit procedures were also reviewed, contributing to the establishment of crew resource management as a fundamental part of airline pilots’ training…. 

Cockpit procedures were also changed after the accident. Hierarchical relations among crew members were played down, and greater emphasis was placed on team decision-making by mutual agreement. Less experienced flight crew members were encouraged to challenge their captains when they believed something to be incorrect, and captains were instructed to listen to their crew and evaluate all decisions in light of crew concerns. This course of action was later expanded into what is known today as crew resource management (CRM), which states that all pilots, no matter how experienced they are, are allowed to contradict each other. This was a problem in the crash when the Flight Engineer asked if they were not clear, but Jacob Veldhuyzen van Zanten (the captain of the KLM, with over 15,000 hours flown) said that they were obviously clear, and the Flight Engineer decided that it was best not to contradict the captain. CRM training has been mandatory for all airline pilots since 2006. 

Back to Florida. 

Would it have been better for the surgeon to call a time out – then query the others in the room to confirm the consent and the history/physical pointed to the correct testicle? Of course, the more eyeballs, the better. 

What do you think? Let us know your thoughts in the comments below.

Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

Learn how Medical Justice can protect you from medico-legal mayhem… 

Jeffrey Segal, MD, JD

Chief Executive Officer and Founder

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2021 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.