Wrong-Site Surgery

Wrong-Site Surgery: A "Never Event" That Should Never Happen

Wrong-site surgery is an operation performed on the wrong part of the body, the wrong side of the body, or the wrong patient entirely. Examples include operating on the left knee instead of the right, removing the wrong kidney, or performing the wrong procedure. Wrong-site surgery is classified by the Joint Commission as a "never event" — an error so egregious that it should never occur under any circumstances.

Despite mandatory safety protocols, wrong-site surgeries continue to happen. The Joint Commission estimates that wrong-site surgeries occur approximately 40 times per week in the United States. In New York City hospitals, where thousands of surgeries are performed daily, even a small error rate translates into preventable, devastating injuries.

Under New York law, a wrong-site surgery is almost always medical negligence. The standard of care requires hospitals to follow the Universal Protocol for Preventing Wrong Site, Wrong Procedure, and Wrong Person Surgery — and when they don't, patients suffer unnecessary harm.

The Universal Protocol

The Universal Protocol was developed by the Joint Commission to prevent wrong-site surgeries. It consists of three key steps:

1. Pre-Procedure Verification

Before the surgery begins, the surgical team must verify:

• The correct patient (using at least two identifiers — name, date of birth, medical record number)
• The correct procedure
• The correct site (left/right, specific level in spinal surgery)
• Relevant imaging studies and lab results
• Informed consent documentation

2. Marking the Site

The surgeon must physically mark the surgical site — typically with a permanent marker — at or near the incision site. The mark must be:

• Visible after the patient is prepped and draped
• Unambiguous (using the surgeon's initials, not an "X" which could be misinterpreted)
• Made by the person performing the surgery, not a delegate

3. Time-Out

Immediately before the incision, the entire surgical team must pause for a "time-out" — a final verification where:

• All team members actively participate
• The patient's identity, procedure, and site are verbally confirmed
• The consent form is reviewed
• Any discrepancies are resolved before proceeding
• The time-out is documented

When any of these steps are skipped, performed improperly, or treated as a formality, the risk of wrong-site surgery increases dramatically.

Common Wrong-Site Surgery Errors

Wrong-Side Surgery

The most common type of wrong-site surgery — operating on the left side instead of the right, or vice versa. This is particularly common in:

• Orthopedic surgery: Wrong knee, wrong hip, wrong shoulder
• Ophthalmic surgery: Operating on the wrong eye
• Urologic surgery: Removing the wrong kidney or testicle
• Neurosurgery: Operating on the wrong side of the brain

Wrong-Level Surgery

In spinal surgery, operating at the wrong vertebral level (e.g., L4-L5 instead of L3-L4) is a common error. This can occur when intra-operative imaging is not used or when the surgeon counts vertebrae incorrectly.

Wrong-Procedure Surgery

Performing a different procedure than intended — such as an amputation when a limb-sparing procedure was planned, or removing an organ that was supposed to be preserved.

Wrong-Patient Surgery

Operating on a patient who was not scheduled for surgery, or performing Patient A's procedure on Patient B. This is rare but devastating, and typically involves failures in patient identification.

Causes of Wrong-Site Surgery

Communication Failures

The root cause of most wrong-site surgeries is poor communication among the surgical team. Factors include:

• Hierarchy in the OR: Nurses or technicians may notice an error but feel unable to speak up
• Failure to conduct a proper time-out: Treating the time-out as a formality rather than a genuine safety check
• Incomplete or absent site marking: Not marking the site, or marking it incorrectly
• Misreading consent forms: Not verifying the consent form matches the planned procedure

Emergency and Urgent Cases

Wrong-site surgery rates are higher in emergency cases, where the urgency of the situation may lead to skipping safety protocols. The Universal Protocol applies even in emergencies — there is no exception.

Patient Positioning and Draping

After the patient is prepped and draped, the surgical site mark may be obscured. If the team does not re-verify the site after draping, the wrong site may be operated on.

Consequences of Wrong-Site Surgery

The consequences of wrong-site surgery are often devastating:

• Unnecessary surgery on healthy tissue: The patient undergoes a surgical procedure that provides no benefit and may cause harm
• Failure to treat the original condition: The condition requiring surgery remains untreated
• Additional surgeries: The patient must undergo corrective surgery
• Permanent disability: Depending on the site and procedure, the patient may suffer permanent loss of function
• Psychological trauma: The emotional impact of a wrong-site surgery is profound
• Increased risk of infection and complications: Additional surgical procedures increase the risk

New York Legal Framework

Statute of Limitations — CPLR § 214-a

Under CPLR § 214-a, a medical malpractice action must be commenced within 2 years and 6 months from the date of the surgery. The continuous treatment doctrine may extend this if the patient continued to receive treatment from the same surgeon for the same condition.

Res Ipsa Loquitur

Wrong-site surgery is a classic case for the doctrine of res ipsa loquitur ("the thing speaks for itself"). Under this doctrine, negligence can be inferred without specific proof because wrong-site surgery is an event that does not ordinarily occur without negligence, the instrumentality was under the defendant's control, and the patient did not contribute to the injury.

Certificate of Merit — CPLR § 3012-a

Every malpractice complaint must include a Certificate of Merit confirming expert review.

MDLaw Firm Results

• $4.5 million settlement for a patient who had the wrong kidney removed at a Manhattan hospital
• $3.2 million settlement for a patient who underwent wrong-side knee replacement surgery at a Brooklyn hospital
• $2.8 million settlement for a patient who had wrong-level spinal fusion surgery at a Bronx hospital

(Prior results do not guarantee a similar outcome.)

Why Choose MDLaw

MDLaw Firm has extensive experience handling wrong-site surgery cases in New York. We understand the Universal Protocol, OR safety standards, and how to prove negligence in these cases. We work with board-certified surgeons as expert witnesses. We handle all cases on a contingency fee basis.

If you or a loved one was the victim of wrong-site surgery in New York, contact MDLaw Firm at 347-524-5777 for a free consultation.