Presented by David Crippen
New York Times, Sunday, September 17, 1995.
The Tampa surgeon who removed the wrong leg in a Tampa, Florida hospital February 20, 1995 is in court trying to regain his medical license. There was no question of a coverup. The patient and family was told of the mistake immediately. The plaintif settled for 1.2 million dollars in a malpractice suit that was settled quickly, and the diseased leg was removed at another hospital. Shortly thereafter, the physician in question lost his license because he was a: "serious and immediate danger to the health, safety and welfare of the public" (boilerplate rhetoric of Peer Review Organizations).
His side of the story: Through a series of mistakes, the blackboard in the OR listing procedures stated the amputation was to take place on the (wrong) leg, as did the OR schedule sheet and the hospital computer system. By the time he entered the OR suite, the patient was asleep, prepped, draped and, since the patient had extensive peripheral vascular disease, the wrong leg looked like the diseased one. He learned the mistake from a nurse halfway through the case.
Numerous colleagues lined up to testify that it was practically impossible not to make this mistake under the circumstances. One witness: "It is my opinion that 50....no 90% of the surgeons in the State would have made the same mistake". The patient in question made the statement: "There is a problem there somewhere that needs to be corrected and I don't know what it is, and I don't know how to go about it".
Question: Is it possible for a set of random, untoward circumstances to mitigate the principle of res ipsa loquitur (the thing speaks for itself?) PS: I happen to know him..he was a resident with me at Bellevue in the late 70s. He was considered to be a good resident and he was very well trained, including a vascular surgery fellowship at NYU Medical Center.
Tom Stinson:
Res ipsa loquitur merely creates a _rebuttable_ presumption that a particular injury had to be the result of negligence. It obviates the necessity of the plaintiff's proving exactly what happened and what standard of care was violated to cause the damage, usually by means of expert-witness testimony, in order to prevail. If the _defendant_ can show exactly what happened and convince the jury that the damage occurred without negligence on his part, the presumption can be rebutted. I believe that the applicability of res ipsa loquitur in a given case is up to the jury.
Pauline Wong:
A number of comments have been made on the list regarding the responsibility of the surgeon & the unfortunate circumstances which resulted in the wrong leg being amputated. As others have pointed out, clearly this can happen when both legs are diseased & the surgeon doesn't arrive in the OR until the patient is anes, prepped, draped, etc.
I'm very familiar w/ production pressure as it applies to human & veterinary anesthesia, but am rather clueless about factors which contribute to production pressure for surgeons & would appreciate being enlightened. Much of the pressure on anes to get cases on the table, etc is related to surg schedules & surgeons. In my experience w/ vet surgeons, they have some degree of control in scheduling non-emerg cases, so I wonder what factors would set up a surgeon to being so pressed for time that he/she makes the kind of mistake described in this case. Is this "efficient" use of time something that the individual surgeon choses to do or is it forced upon them?
Given that one only gets one body in this lifetime & that surgeons, like other humans can make mistakes (ie may be god-like but not perfect!), it seems that it would be especially important for a surgeon to correctly identify the limb to be amputated. Can someone please tell me what I'm obviously missing here? I'm not being facetious - just puzzled.
Louis Brusco:
I really feel strongly that this particular case is a result of physicians trying to sqeeze every last minute of productivity from themselves, not without good reason. I would bet that 20 years ago it would be a rare instance where a surgeon did not see and examine a patient prior to the induction of anesthesia; certainly surgeons used to be present for the induction, prep and drap of their patients. But now, with the "efficiency" experts saying that we need to "move along", surgeons frequently walk into a situation like you described. We have a rule - attending has to be IN THE ROOM for induction of anesthesia; not a chief, not an intern - the attending. The unfortunate thing about this is that the "efficiency" experts will never be blamed for the screw-up, just the poor MD.
Dick Burrows:
There but the grace of God go I. No I don't think it is possible to mitigate the principle - If he is a surgeon of any standing I would presume that he would know that it is impossible to tell the diseased leg from the non diseased leg under anaesthesia under these circumstances. He should have checked. The leg should have been properly identified and he should have insisted on proper identification of the leg. I would think that the whole sorry situation has taught him a lesson which he is unlikely ever to forget and he would be a much better individual for it and unlikely to allow anybody to commit the same mistake. To me it would be reasonable to allow him to practice.
Res ipsa loquitur merely creates a _rebuttable_ presumption that a particular injury had to be the result of negligence. It obviates the necessity of the plaintiff's proving exactly what happened and what standard of care was violated to cause the damage, usually by means of expert-witness testimony, in order to prevail. If the _defendant_ can show exactly what happened and convince the jury that the damage occurred without negligence on his part, the presumption can be rebutted. I believe that the applicability of res ipsa loquitur in a given case is up to the jury.
Res ipsa loquiter simply means "the facts speak for themselves" The fact is that wrong leg was taken off and should not have been taken off. The facts are of such gravity that a jury/magistrate/judge will view this as being so gross a mistake that the negligence is self evident - res ipsa loquiter. I think however there are probably far more people in this little saga who are very happy that the finger of fate was not pointed at them.
Mark R. Mainous:
I would like to put in my 2 cents worth concerning this "unfortunate" surgeon in Tampa who removed the wrong leg. I am a surgeon, and I take it as my responsibility to , first of all, know the patient I'm operating on beforehand, to plan the procedure ahead of time, and to perform the appropriate procedure. If I am to amputate an extremity, I make damn sure that I am amputating the correct extremity long before the knife ever touches the skin. This is MY responsibility, and no one else's. This error is INEXCUSEABLE, and the surgeon in question, as well as his unfortunate patient, does not have a leg to stand on. Just an opinion.
David Crippen:
I tend to agree with your assessment, and this is the way I was taught (beaten insensible). I also agree with someone else who said that the operating theater has become ritualized and there is a lot of pressure to let others do busy work so the surgeon can get in-get out and free up time for others; all for the sake of efficiency.
My original question was to try and discern if there was ENOUGH mitigation to justify a big slap on the wrist rather than taking away a man's livelihood. Think before you answer....we are talking about a life here...not a job. Where do you draw the line between someone who is a menace to society (like the guy who lets third world women bleed to death in his office following botched abortions) and someone who made a bad mistake and is VERY likely not to repeat it. How hard are you willing to be on this guy?
"The quality of mercy is not strained; it falleth as the gentle rain
from....."and so on".
Some British Guy (I was absent that day).
Malcolm Fisher:
I think there is a danger in the Act of God/random screwup philosophy. If there was a patient Bill of Rights it might be reasonable to include an entitlement to have the correct operation (surely hazardous enough in itself,) and to not have an ET tube left in your oesophagus. Richard Kitz used to give a nice talk comparing medical stuff ups with airplane disasters and maintained it always took three mistakes. In this case we have four, wrongly written,and nurse,anaesthetist,and surgeon checks failed. Sure it is a failure of processes and the hospital should get sued. How the blame and costs are apportioned is another matter.
I risk being called anti surgeon once again but I think an important principle is that you cant have it both ways. In the early days of the battles to build this specialty how many times did I hear:
This act of negligence was to me therefore the responsibility of the surgeon. I have heard Dick's " there but fot the grace of God....." statement many times and suggest that sometimes the more appropriate response is "If I ever do that I will rack my cue, pack my bags, and head into the sunset." Finish and klaar. I hope if the day comes I will have the grace, wisdom and dignity of my former mentor, but being human will probably lie, conceal and blame as others do. The thing about bad doctors (and I concede Dave's surgeon may only have been one once)is not just what they do but that they don't know they are doing it. It is doubtful this surgeon would do the same thing again but it was an expensive relearning of a pretty standard rule.
Dick Burrows:
I don't disagree with anything specific here except that I think you do, in fact, want it both ways. One checks check and checks but ocassionaly for a varietu of reasons one misses something. If I intubate the oesophagus and it is not negligent to intubate the oesophagus - it is negligent not to check that you may have done so. End tidal CO2 notwithstanding, I am the only one who knows. It is encumbent on me to check. On the other hand if I am a surgeon about to take off the leg I would hope that there were others who would help me make the decision - I am not alone (I hope).
If the surgeon carries the final responsibility (I suspect because he is the easiest to nail to the wall) then fine. But as you said there were four mistakes.... How far should we help him or just hang him out to dry. Where the negligence is defined by the term res ipsa loquiter I think you may well be right - that it may well be the time to hang up your boots as it were. It certainly is a very expensive lesson. But it is also at the far end of the spectrum and it really depends where you want to draw the line.
Steven Hollenberg:
Agree with above. There is no defending this mistake without sophistry. I would count it as two strikes against the practitioner. If he's had a strike before, he should lose his license. Similarly, if he makes another mistake, he should hang up his scalpel. Barring that, give the guy another chance.
William Griggs:
It seems clear that this surgeon and his colleagues in the OR are not guilty of malice. However neither usually is the negligent or drunken driver who kills or maims a person on the roads. There are significant penalties associated with causing major injury or death by dangerous or negligent driving. While risk of reoffence is a mitigating factor in sentencing, it is only a mittigating factor not an overriding one. Medicine as a profession must police its own standards. If we do not do this adequately, then the rest of society may quite rightly deny us the right to do so and impose external standards based perhaps more on emotion than medical correctness.
It is my belief that this surgeon, like the negligent driver should pay a "debt to society" (whatever this means.) If our profession does not determine this, the we risk losing what credibilty we have left. Determining the exact nature of that payment this instance deserves requires more detail than is currently available to us. However this is clearly a substantial wrong and as such it requires a substantial response. Anything less endangers our profession and potentially all our future patients.
Ken Mattox:
Many comments have been made on this board relating to the tragic amputation of the wrong leg in Florida. Obvious therapeutic misadventures cause surgeons to be ready targets for the press, lawyers, and ridicule. I do not condome or make any excuse for any mistake in medicine, but acknowledge that in a biologic system with its variables, non standard responses will occur. I also acknowledge that the therapeutic variables may be as much as 25%. In that medicine is still somewhat of an art form, using scientific applications, variable use of technology, medication, and potions (ie. chelation therapy etc.) continue to this day. As the chief of staff of a county hospital to which many end stage patients are sent after their money runs out, I see many many many patients who have had treatments given to which there was a complication. Miscalculation of the dose of digitalis, excessive use of coumadin, too long on antibiotics, over reliance on the newer antihypertensives, treating anal cancer as a hemorrhoid, etc. etc. are becomming more and more common, but are less obvious than cutting off the wrong leg or breast.
I am seeing more of these therapeutic misadventures comming from "gatekeepers" and primary care physicians from HMOs where there is a reward for keeping people away from surgeons and out of the hospital. This kind of activity is going to increase, tragically. Every reader of this board has within the last month either miscalculated the the volume of fluids required, the dose of Lasix, or the settings on a ventilator. At least each and every one of us could easilly find another member of this board who will openly admit that they would have treated a patient differently and find fault with ANY cited therapeutic intervention. Each of us commit "little sins" which are never detected. Be careful to throw large stones at an incomplete data base. Both myself and any one of us would be able to "MAKE CASE" and find an error on the charts of any other physician in the world. Tragically that is what most of our QA hospital programs have become. We are looking for fault and wishing to throw stones. This discussion should continue until we have dissected out the ethics of it all.
Steve Streat:
The case of the unfortunate surgeon in Florida is not unique in Medical practice. It is however, the failure of a system and not only that of an individual. So much of hospital practice is based on mutual trust and on a series of checks and counterchecks to eliminate errors that fortunately errors are few and far between. If every Attending had to do a complete examination on every patient under his care in addition to that of the members of his team he would never leave hospital and still find it a difficult proposition. Sadly once an error occurs the individual bears the brunt, while the vicarious responsibility of the "system" is nowhere to be seen.
To illustrate the differences across the pond- we had a brilliant Paediatric surgeon who was referred a case of polycystic kidneys from a smaller hospital. Split function showed that one kidney was worse than the other. The labelling of the kidneys was wrong leading to the surgeon taking out the better kidney. Having found his error he honestly admitted to his error. Both press and political pressure was brought on to bear, asking for his resignation. Every single physician in the hospital signed a petition resigning from the staff in the event of his dismissal. He continues to do his good work though none of us, his colleagues, can help him in what he may face financially in the courts.Only the Buddha can.
I feel the surgeon in Florida would already have paid for his part in his patient's injury. If death due to negligence (or a party to a system that led to negligence) can be considered as one end of the spectrum of mistakes that can occur (as even Mr Matt Ox says), then retribution by society should be similarly toned down for this particular case.
Mark Mainous:
I agree totally with everything Dr. Mattox has said. I make mistakes every day, and I think that some of the most dangerous physicians on this planet are those who see themselves as "infallible". However, I contend that the term "mistakes" covers a huge spectrum, from trivial at one extreme to lethal or permanently disabling at the other. There is no way anyone can ever hope to eliminate all mistakes. However, it is the duty of every physician, surgeon and non-surgeon alike, to do everything in his or her power to attempt to eliminate the most serious errors. This goal may be extremely difficult at times, and everyone who practices long enough will make more than their share of serious mistakes. This, in and of itself, does not necessarily mean that they are bad doctors for making an occasional lethal or permanantly disabling mistake. Many mistakes of this nature are, even in retrospect, difficult or impossible to avoid.
I contend, however, that most of these mistakes are perfectly avoidable by practicing sound and ethical medicine. I don't consider operating on a patient whom you obviously don't know, performing an operation that you yourself obviously did not personally plan, and trusting others to keep you out of trouble and to help you avoid performing the wrong operation, as sound and ethical medicine. I had the ethics of surgical responsibility beaten into me on a daily basis throughout my residency, and I know I am not alone. Nevertheless, if the pressures of turning operating rooms over rapidly to make an extra buck are truly to blame, and if this type of "assembly line"-style approach to surgical care is truly a trend, rather than an anomaly, then, friends, our profession is in deep, deep trouble, and we are the ones to blame for it.
Malcolm Fisher:
In a biologic system with its variables, non standard responses will occur. Every reader ofthis board has within the last month either miscalculated the the volume of fluids required, the dose of Lasix, or the settings on a ventilator. Atleast each and every one of us could easilly find another member of this board who will openly admit that they would have treated a patient differently and find fault with ANY cited therapeutic intervention. Each of us commit "little sins" which are never detected. Be careful to throw large stones at an incomplete data base. Both myself and any one of us would be able to "MAKE CASE" and find an error on the charts of any other physician in the world. Tragically that is what most of our QA hospital programs have become. We are looking for fault and wishing to throw stones. This discussion should continue until we have dissected out the ethics of it all.
Dr. Mattoz's statements as usual are wise . But.... our mistakes are not acts of God or chance.Thet are caused by doctors,not HMOs.They may be individual or process related. We usually have responsibility for both. Patients risk signifigant injury from doctors.Up to 14000 doctor related error deaths are estimated in Australia a year. (Probably a high figure). Our society divides mistakes or unacceptable acts in terms of degree,consequence,malice. The more serious the error,the greater the punishment society is likely to extract from us. The wrong leg in the bucket is pretty serious. Our society is dependent on people taking the consequences of their actions. "There but for the Grace."...........is true,but it is used as a cop out. It is a dangerous remark as is is excusing us for errors we have not yet committed.
It is God's fault. It is luck,fate,karma. We don't screw up.Screwing up is statistically inevitable. Bullshit. There are those who believe that if we got rid of the bad guys,and policed our profession ourselves (as a profession should) a huge impact would be made on the litigation industry. We protect. After all ,there but for the grace..........Our"tragic" QA programmes I concede are wanking when they gleefully find the wrong dose of lasix. But in our hospital they have detected repeated errors which have gone. Isolated cerebral tumours don't get biopsied now in patients whose post operative chest Xrays are full of mets. People are less likely to be discharged when unseen treatable pathology is documented on a test form the that hasn't reached the attending.
Both in driving my car and treating my patients the relentless progress of age makes me more prone to error.So I have to be more careful. If I make a serious mistake I expect to pay the price.If I make several I should go into Administration where you are expected every few years to try something new because what you have been doing is wrong. Three people in OZ got HIV from procedures under local following a similar procedure in an HIV positive patient in a doctors rooms. Was God feeling malevolent that day. Was it a mistake that was reasonable? . Do you go there but for the Grace of God, Doctor. Maddox?.
The doctor who took of the wrong leg was punished. I think he should get his licence back. The only justification for not doing so is if there is reasonable evidence it would happen again. It is more important we fix the process than punish the surgeon. But it is vital we do not abrogate responsibility for the process or try to become a gruop not prepared to wear the consequences of our actions. If he does the same thing again (and he is less likely than most to so do) what should happen?
Dick Burrows:
I think I was the one who introduced the expression "there but for the Grace of God go I" to this discussion around a surgeon who was foolish enough to remove the wrong leg. Ken Mattox has pointed out that we all make mistakes (which we do) and Malcolm Fisher has said that to claim that these are the fault of a Higher Authority is bullshit. Surely we are all both right and wrong at one and the same time. Perhaps also, like those boys in Sparta the crime is not in the mistake or the motive but in getting caught???
It is a debate about crime and punishment.
Firstly there is the incident and the definition as to what a crime (negligence) is. Clearly there are those mistakes where the circumstances are so obviously bad (res ipsa loquiter) that a blind man could see it as wrong and the crime or negligence exists because of the mistake. But we have said this.
Another question asks "Who is to blame":
We no longer practice in an era of the sawbones who had little more than a bottle of whiskey and a knife with which to remove the leg. Having ensured that he has consumed an amount of whiskey comparable to the patient he whips of the leg and dips the stump into boiling pitch while the bad leg gets better! We are supposed to be a team albeit with stratified responsibilities. Maybe one of us has the final responsibility and where the situation of res ipsa loquiter is concerned it is easy to apportion blame to that individual. But mistakes are seldom that simple. There may be several mistakes compounding to a disaster. In this instance "there but for ..." may simply mean that somebody else took the rap although another might really be the one to blame. Even though the culpable mistake may have been minor it may have been the disastrous one.
There is also motive, intent, attitude. Abstract values but ones which I would submit that are vitally important when assigning guilt and designing punishment. I don't mean attitude in the sense of "I didn't mean it guv - honest" I mean it in the sense that we humans are unique (supposedly) in the ability to think about and analyse our own actions in a way that we learn from our mistakes. We hopefully learn in such a manner that we do not repeat the mistake and we pass our experience along to others in the hope that they too will learn. The individual who does not learn and admit his mistake - even if only to himself is the one who must be condemned. Malcolm may drive his car and commit mistakes and be responsible for them. Certainly, if he were a brittle epileptic He is brittle otherwise) and he insisted on driving then he suffers the consequences. I don't know how much he will be to blame when he gets his fatal arrythmia behind the wheel at 70miles an hour. It's just not worth while digging him up to hang him :-)
The individual who slavishly repeats his errors should surely be doomed to the doss house - And those who allow him to so do should surely follow if they are found also to be at fault because they were aware of the repeated transgressions. I agree that we in the medical profession have been slow to develop systems whereby we bring transgressors to book earlier than when the disaster happens but perhaps we feel that these are little more than a witch hunt; I don't know. Perhaps as Malcolm said "there but for...etc"
Then there is punishment.
If blame is apportioned properly and fairly then any punishment that decided on must be applied. We have no option in this regard. This is the civilisation that we have decided on. We may debate issues such as hanging and so on but that is another issue. Once again however the "properly and fairly" bits are the ones that cause problems and it seems to me that we often find ourselves tried and convicted according to the same rules that saw Christ crucified; the need for a sacrificial lamb for the mob as is custom. It has certainly been the case here that I make decisions which I would not make if I had the resources I would wish for. I know that I am sometimes playing a dangerous game when I make a decision to stop resuscitation earlier than I would elsewhere - although I may well be right but the science of prediction in the individual patient is far from absolute. If then some aggrieved relly (perhaps looking for unjust compensation) decides to haul me into court I may well come short as I am left out on a limb trying to defend myself while all the administrators say "don't believe 'im guvnor. We would 'ave spent the money an' sent the bloke private" and the guys in private say "we would have looked after him - we would have got him through" "There but for the Grace of God go I"