Legal Review & Commentary

$20 million award to parents for removal of the wrong side of child’s brain

By Jonathan D. Rubin, Esq.
Kaufman Borgeest & Ryan
New York, NY

Elizabeth V. Janovic, Esq.
Kaufman Borgeest & Ryan
New York, NY

Carol Gulinello, RN, MS, CPHRM Vice President, Risk Management & Professional Practice Evaluations Lutheran Medical Center Brooklyn, NY

News: In 2004, a 15-year-old boy underwent brain surgery to eliminate epileptic seizures initiating from the right side of his brain. Doctors removed tissue from the left side of the brain before realizing their mistake and operating on the right side of the child’s brain. The hospital did not disclose the fact that brain tissue was removed from both sides of the brain to the child’s parents. When the child’s parents were informed of the surgical mistake, they sued the hospital. After a long and drawn-out series of trials and appeals, a $20 million jury award was upheld by the state supreme court.

Background: On Aug. 2, 2004, a 15-year-old boy with a history of epileptic seizures underwent brain surgery to remove a right-temporal-lobe lesion. Local reporters were invited to the hospital to take photographs and observe the surgery. The typical pre-procedural measures were not taken to verify the correct type of procedure, which include marking the procedure site. Because of this omission, brain tissue was removed by surgeons from the wrong side of the brain. The hospital staff realized the error and then operated on the correct side of the patient’s brain.

According to the plaintiffs’ claim, the neurosurgeon first began surgery on the left side of the brain by removing and damaging portions of the hippocampus, left amygdala, and other left-hemisphere brain tissue. Upon realizing they had operated on the wrong side of the brain, hospital staff asked reporters to leave, and hospital administrators were informed. The hospital administrators did not inform the plaintiffs, and the operation continued on the right hemisphere of the child’s brain. Once the surgery was complete, the surgeon informed plaintiffs that he initially had operated on the wrong side of their child’s brain, but assured them no harm had been done and did not convey that tissue had been removed. In fact, plaintiffs did not learn that tissue had been removed from the left hemisphere of their child’s brain until 15 months later when an MRI revealed missing portions of the wrong side of the brain.

Plaintiffs filed suit against the hospital’s insurance carrier seeking compensatory and punitive damages for one count of outrage and two counts of medical malpractice. Plaintiffs argued that their child was deprived of critical rehabilitation time when the hospital administration failed to stop the surgery to the right side of the brain after learning of the mistake. Plaintiffs alleged that following the surgery, the child suffered cognitive problems that resulted in a change in personality. He was described as having a “blank and void look in his eyes.” Plaintiffs settled with the surgeon who performed the surgery before trial. In 2008, due to jury misconduct allegations, plaintiffs voluntarily dismissed their lawsuit against the hospital’s insurance carrier.

In 2009, plaintiffs re-filed their case against the hospital’s insurance carrier. The insurance carrier filed a motion to dismiss the outrage claim arguing that the only reason it was included in the suit was a result of the insurer-insured relationship with the hospital; therefore, the outrage claim should not apply. The circuit court dismissed the outrage claim against the hospital’s insurance carrier, but maintained the medical malpractice counts. The jury awarded $20 million in damages to plaintiffs, which was later reduced by the circuit court to $11 million. The hospital’s insurance carrier appealed the decision and the $11 million award, arguing that the circuit court was not properly instructed. In December 2012, the state supreme court upheld the jury’s verdict and restored the $20 million award.

What this means to you: There was one very important hard stop that, if implemented, would have negated this whole case. That is The Joint Commission-mandated Universal Protocol or “time out” procedure.

The Joint Commission issued a list of National Patient Safety Goals in 2004. One of these goals, the Universal Protocol or timeout procedure, was created to prevent wrong-site, wrong-procedure, and wrong-patient surgery. The intent of this goal is to ensure patient safety by requiring that all immediate members of the procedure team including the surgeon, anesthesia provider, circulating nurse, operating room technician, and other participants in the procedure be present for the verification of the patient’s identity, type of procedure to be performed, verification that an informed consent exists for the procedure, and that the laterality of the surgery or procedure is verified and marked, if required, for the particular procedure. Exceptions to the marking requirement occur in procedures that do not involve laterality. If possible, the patient should participate in the site marking and, if the patient is a minor, the guardian should be involved in the process. The site marking frequently occurs in the holding area of the OR before the patient is brought into the operating room and before he is positioned and draped. The verification mark must be present and visible when the patient is fully positioned and draped so the entire OR team is confident that the procedure will occur on the correct side. At that point, the surgeon ensures that everyone is aware of the overall plan of care for the patient, and everyone agrees to begin. The surgeon and anesthesiologist also agree on the anatomical positioning of the patient to ensure a good outcome.

The use of a checklist is common among the OR staff members to ensure compliance with all the steps in this procedure. Before the skin incision, the surgeon performing the procedure verbally calls the timeout, and all relevant information is confirmed by the team. Clearly, this step did not occur in this case. Had the steps of the Universal Protocol in the form of a timeout been performed, the surgical team would have realized that the wrong surgical site was being considered. The entire OR staff is culpable, and this breech would be considered a sentinel event reportable to The Joint Commission.

Once it was realized that the procedure was done on the wrong side of the brain, it was incumbent upon the surgeon to immediately stop the incorrect procedure. The surgeon, not the hospital administrator, is required to fully disclose the events to the patient and family. The surgeon clearly told two “untruths:” first, when he advised the family that no brain tissue was in fact removed from the left side of the brain, and second, when he gave a misleading and incorrect prognosis that no harm was done and the patient should not have any deficits. The surgeon acted with a willful disregard for the plaintiff’s welfare. This action certainly would lead to feelings of anger, disappointment, betrayal, and mistrust on the part of the plaintiff, who ultimately would want recourse for the action of the surgeon and hospital.

There has been much literature published on the nuts and bolts of the disclosure of information around adverse events. There are several models that can be implemented, depending on the comfort level of the practitioner when speaking to patients and families regarding sensitive issues.

The use of a disclosure team is popular in many medical centers, and the members of such a team can be chosen, depending on the situation. In any case, a unified approach when speaking to a patient/family, with staff members acting in good faith with an expression of empathy and sincerity while using terms that lay people can understand, is important in achieving a successful outcome.

Additionally, the hospital must “make things right” for the patient/family in the way of compensation, in whatever form that might be necessary. The patient/family must be allowed time to process the information and the subsequent ramifications of the event. They also must be given the opportunity to partner with the hospital and clinical staff on a corrective action plan. Some also believe that disclosure of an adverse event also helps the clinical staff deal with their feelings of fear, guilt, and anxiety. Of course, the content of the disclosure discussion should be documented in the medical record.

Another issue that was not addressed in the case summary was that of outside observers. Reporters were invited into the operating room, by the surgeon, to view this procedure. Of concern is whether the patient and family were aware that reporters were invited into the OR to observe this procedure and whether they gave permission. If not, this was a breach of the patient’s right to privacy and also should have been disclosed to the patient’s family.

Corrective actions in this case could include intensive re-education of the National Patient Safety Goal regarding Universal Protocol. A subsequent audit of concurrent observation of time-out procedures should also be done as part of the corrective action in this case, as well as appropriate disciplinary action taken against those practitioners responsible for culpable conduct in breaching patient safety. The formulation and implementation of a practical adverse event disclosure policy and procedure, in which the practitioner can elicit guidance from hospital administration and other experts, would be extremely valuable in cases such as this one.


CV-2009-96, Pulaski County Circuit Courts, Arkansas (2012).