Surgical errors occur with alarming frequency. The journal Surgery recently reported a survey of one particularly disturbing category of surgical error — so-called “never events.” Never events were so named because, pursuant to a list created by the Centers for Medicare and Medicaid, these events should never occur. In the surgical context, never events include wrong-site surgery (i.e., where a surgeon performs surgery on the wrong body part) patient mis-identification (i.e., where a surgeon performs surgery on the wrong patient) and retained foreign object (e.g., where a surgical towel, sponge or instrument is left inside the patient after surgery).
The Surgery article reported that there were “a total of 9,744 paid malpractice settlements and judgments for surgical never events occurring between 1990 and 2010.” This would equate to approximately 100 such claims in Ohio during the reporting period. However, these statistics vastly underreport the incidence of “never event”-type surgical errors for several reasons. The statistics were culled from the National Practitioner Data Bank (NPDB). The NPDB excludes payments made by a physician’s practice group or pursuant to certain types of settlements (e.g., high-low agreements in some circumstances).
Further, not all incidents are reported to the NPDB. Public Citizen recently reported that “almost 50 percent of the hospitals in the U.S. had never reported a single privilege sanction to the NPDB. Prior to the opening of the NPDB in September 1990, the federal government estimated that 5,000 hospital clinical privilege reports would be submitted to the NPDB on an annual basis, while the healthcare industry estimated 10,000 reports per year. However, the average number of annual reports has been only 650 for the 17 years of the NPDB’s existence, which is 1/8th of the government estimate and about 1/16th of the industry estimate. Hospital reporting varies by state. For example, about 70 percent of the hospitals in Louisiana have never reported while only about 25 percent of the hospitals in Connecticut have never reported.”
When surgical errors result in harm, a claim for medical malpractice may exist under Ohio law. If the surgical error is a “never event,” you probably have a strong case.