Friday, July 31, 2009

Doctor Operates On Wrong Leg Twice And Is Still Practicing Medicine

According to a recent article, a New York surgeon operated on the wrong leg--TWICE. A couple of things are obvious. First, this guy has a real problem with attention to detail. He may even be a good surgeon, but this is a sign that he is too hurried for whatever reason. Some may argue that doing this once, when so easily preventable, is inexcusable, much less when it happens twice.

Second, most reasonable people would expect that the hospital, or the state medical board which licenses and disciplines doctors, would really drop the hammer on this guy. Reasonable options might include: (a) suspending his license for a period of time; (b) Revoking it; or(c) terminating his privileges at the hospitals where he operates.

Wrong. How about option (d):...ready for this....he was CENSORED AND PUT ON PROBATION! I'm sure his scalpel is just quivering over the cruel punishment of a "reprimand."

Indignation aside, this case provides two valuable teaching points on Ohio malpractice cases and laws. Juries who hear these cases arrive at the courthouse with a lot of misperceptions about malpractice litigation. Juror Misconception No. 1:"We were concerned that if we returned a verdict against the doctor, he would lose his license." Not true. Ohio's State Medical Board is similar to New York's in that REPEATED MALPRACTICE is usually not enough in most instances to cause a doctor to lose his license. Conduct like stealing or selling narcotics, billing fraud, and sexually abusing patients is more likely to get a ticket yanked than a pattern of malpractice. Sad, but true.

Juror Misconception No. 2: "We were reluctant to find the doctor negligent because there was no previous history of similar malpractice." This is another red herring. If Dr. Wrong Leg had operated in Ohio on the wrong leg once before, and was sued for malpractice for doing it a second time, chances are that his first negligent wrong leg surgery would be inadmissible at trial anyway! In a malpractice trial, we do not have to show that a doctor had a history of malpractice. A perfectly competent doctor can make a preventable mistake on a bad day and injure a patient. Our Rules Of Evidence would generally exclude Dr Wrong Leg's prior botched surgery unless he got on the stand and denied ever having operated on the wrong leg before. So, in some instances, there may be a history of similar malpractice that we're not even allowed to talk about in trial.

Physicians' groups, the AMA, and insurance companies are famous for spending millions arguing that doctors are leaving the practice due to lawsuits and juries are going wild with "jackpot justice" jury verdicts. We see here the reality of the situation. Operating on the wrong leg twice gets the doctor a slap on the wrist, and if he's sued for malpractice, chances are the jury will never be told of his first wrong leg mishap. Now you hopefully can see what I mean when I said that Ohio malpractice cases and litigation are fraught with misconceptions.

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