Performing surgery on the wrong site is, in my view, per se negligent and something that just should not happen.
Wrong site surgery is easily avoided by following simple checklists: identify the patient; ask the patient to identify the intended site of surgery; mark the site; correlate the patient’s anatomy with the imaging studies; correlate the site of surgery which what is planned as documented in the medical chart. But believe it or not, there are still times when these simple precautions are not followed and a surgical blunder occurs.
You would think that the victim of wrong site surgery could settle the case without a lawyer (assuming he or she knew the law on quantifying the money damages arising, which might be a stretch…). Well think again!
Noted Virginia malpractice lawyer Ben Glass is represented a patient who tried to do just that – settle her own case – by making a very reasonable offer. Ben’s client was met with a blunt denial.
Ben will gave this client access to justice through the device of the contingent fee, and I don’t doubt that after taking fees and expenses into account, the client did much better in her settlement or award than as a “do it yourselfer”. But the same unreasonable medical malpractice insurers are busy lobbying in the U.S. Senate to pass a law limiting fees that injured patients pay to their lawyers. With enough one-sided changes to the rules, insurance companies may eventually get away with denying recovery even for wrong site surgery – negligence per se!