Wrong Side Surgery + Apology = COVID Liability Defense

A St. Louis area woman woke up from back surgery to hear her surgeon admitting he operated on the wrong side and wrong level, apologizing and admitting his mistakes, and offering to immediately take her back to surgery. After fighting back pain for a year, Natalie Avilez scheduled an operation for a right side-disc issue, except the surgeon operated on the left side and at the wrong level.  Ms. Avilez submitted to a corrective surgery the next day by the same surgeon, but she claims the back pain is worse after the second surgery and believes she would have been better off without any surgery.  Ms. Avilez filed a medical malpractice lawsuit, and, surprisingly, her surgeon is claiming immunity from litigation due to COVID or the "Public Readiness and Emergency Preparedness Act (PREP Act)."  Here is the story from a St. Louis area news station. Oh, and the hospital gave a "we don't comment on pending litigation" response to the news station and the doctor refused to meet with the reporter.  

Wow....where do we start?  This is the type of story that makes me feel we have made progress, but we haven't.  Twenty years ago, the surgeon likely would not have admitted a mistake and apologized to the patient or family in the post-op. That is progress.  But, how did this case ever make it to litigation much less with an apparently frivolous defense?  How did things come off the rails from "sorry" to the court house? 

I challenge you to think about your own hospital, practice, nursing home, etc.  If a mistake of this nature happens and staff does the right thing by communicating with the family, what is happening next?  Obviously, a news story does not have all the details we need and neither side in this case is going to talk to us during litigation, but we can ask important questions among ourselves. 

Did the surgeon or any of the staff involved in the initial operation contact risk, legal, c-suite, etc after the apology?  Did they know to contact legal, risk, etc before meeting with the patient and apologizing?  Did the hospital have hot line numbers prominently displayed encouraging staff to call after an adverse event? And why did the surgeon meet with the patient when she was just waking up and groggy?

Surely, at some point, leadership learned about this case, even if it was from the family calling or a PI lawyer requesting records.  What happened then?  How did leadership respond?  Was there another apology?  Was there an offer to meet with the family and, if they were represented at that point, with their attorney present?  What kind of outreach happened with the PI attorney?  Did the hospital offer to meet the financial and emotional needs of the patient and her family?  Did the hospital offer to make patient safety fixes, and show the patient and her family?  Are these communication efforts documented anywhere?   And did anyone think to stop billing along with all other mail to the Avilez family, including marketing magazines and fundraising appeals for the hospital?  

Other questions....did anyone from the hospital review how the defense lawyer planned to respond to the claim?  Is the defense lawyer on board with your disclosure and apology approach?  Did anyone in hospital leadership say to the defense lawyer, "Hey, your COVID immunity defense is going to make us look silly and make a bad situation look a thousand times worse. And imagine what happens if this case makes it into the media!"  

Now that this case has made it to the media -- with the doctor and hospital splashed all over the story -- why didn't the hospital or doctor authentically respond to the reporter?  We have counseled at length about the need to eliminate "no comment" or "HIPAA responses," most recently with another St. Louis hospital.  Furthermore, is anyone from the hospital considering how an authentic apology can help this situation?  Finally, does the doctor and hospital understand that apology is more than words?  

So many questions and this is a good case to learn from. It's a good teaching case to share with leadership and staff and have them pick it apart for mistakes and how they would handle it differently.  The key is to think about these cases before they happen, train staff and leadership appropriately, and also make sure your defense attorneys are ethically aligned with your organization.  Sorry Works! can help you think through these issues...give us a call at 618-559-8168 or email doug@sorryworks.net.

Sincerely,

- Doug

Doug Wojcieszak
Founder and President
Sorry Works!
618-559-8168 (direct dial)
doug@sorryworks.net