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Clear liability case from reversed X-ray was resolved efficiently with insurer/institution cooperation.


  • Beth Cushing, JD; CRICO


The following case abstract is based on closed claims in the Harvard system. Names and some details have been changed to mask identities.

In this case, the liability was clear, and the institution and its malpractice insurer worked closely with the plaintiff, to reach relatively speedy resolution for the patient.

46-year-old builder/architect with long history of low back pain, experienced an acute episode of severe pain in his right lower back, radiating into the right leg. MRI showed degenerative disk disease, mild concentric disk bulge at L4-5, and moderate size right paracentral disk herniation.  Referral to neurosurgeon resulted in plan for right L5-S1 microdiscectomy.

The neurosurgeon’s preoperative note mentioned that the patient had long history ofright lower extremity radiculopathy, refractory to conservative measures. In the operating room with the patient under general anesthesia, needle marker was inserted into his vertebrae.

Unbeknownst to the team, the x-rays had been put up backwards. The junior resident made left midline incision over the spine. Perceiving that it would take 20 minutes before they would expose the vertebral body, the attending surgeon left the operating room and went back to his office. Soon after he left, the senior resident was called away for an emergency. The junior resident proceeded alone and carried down the incision to the interspace of L5-S1 where left hemilaminotomy was done.

When the attending neurosurgeon returned to the operating room, he discovered that his senior resident had been called away and his junior resident was involved in separating and clearing the muscle and tissue away from the spinal column. The attending immediately saw that the resident was operating on the wrong side. The areon the left was closed and the procedure was successfully completed on the right side. In the recovery room, the attending surgeon appropriately disclosed that they had mistakenly separated tissue and muscle from the left side as well as the right.

Immediately following surgery, the patient began to complain of new symptoms involving the left side. After discharge, the patient continued to be treated with anti-inflammatories and activity restrictions for severe left leg pain, which required multiple hospital visits. With no evidence of pre-existing left back pain or left leg pain for this patient, letter to the hospital from his attorney requesting compensation led to relatively quick settlement and no lawsuit.

To discuss how liability claim like this is managed and the imbedded risk management issues in this case, we are joined by CRICO/RMF Claim Manager and attorney Beth Cushing.

Beth, thank you for joining us. When you have clear liability in case like this, does it change how the claim is managed?

In some respects. No matter what kind of situation we’re dealing with, we tend to go through certain steps.There is always an interview with the physician and the people involved, the clinicians, and we always get some form of an objective review of the case, whether it’s one of our in-house physicians or if we have to go outside to an expert, we will do that.  In case like this or in cases where there is medication error and the error is rather obvious, typically we won’t go to the same extent in getting expert review obviously. 

How else is it managed differently?

Well, if it’s claim made directly by patient, then obviously we are dealing directly with the patient, trying to resolve the claim with them, which can be little more challenging than if you are dealing with an attorney who may know the process little bit better. Oftentimes, patients will ultimately seek legal representation simply because it does get to be more than what they anticipated.Oftentimes, we will even recommend that they seek legal counsel because we feel that it will help us achieve more equitable and fair resolution of the claim.

Most people think that involving lawyers makes it more difficult.

You would think so and sometimes it does, but on the whole, the people that we deal with are sophisticated in this area, and they know that if we are recommending that patient go and see them, it’s because we are trying to do the right thing and settle the case in an appropriate fashion, and we think that the patient would be best served by having someone counsel them on the other side.

So you have clear liability, some sort of claim or request for reimbursement goes to the hospital, and how do we work with the hospital in that situation?

Usually, the risk manager or sometimes the physician or clinician involved will call us pretty close to the occurrence of the event, let us know that it has happened...  Sometimes there will be no claim. But when there’s an event that has obviously caused damage, it is more of situation to be managed from both CRICO’s perspective and from the risk manager, involving both the patient and the physician who were involved.They are both at that time in great need of support services, the patient obviously medical care, and we try to work collaboratively with the hospital to provide whatever we can to assist in that process.So if the physician wants to speak to an attorney, then we will assign someone for that purpose. They can certainly always speak with us and we encourage that, and we encourage them to speak with the risk manager, and the chiefs of the service.Then we will investigate along with the hospital and try to figure out what’s the best course of action.

On the risk management and the patient safety side, there seem to be some pretty classic elements. Can you talk about that?

Sure. What we noticed in this case was obviously at the very outset the x-ray was misplaced so that it was positioned in way that it was flipped around, left was right, right was left. That’s just human factors issue. Certainly it happens.I think with the new technologies that they are employing, computerized films and things of that nature, you will see less and less of this type of error perhaps.I think this falls in the category of the checks that are now being done more routinely in OR’s where everyone in the team acknowledges...what side they are working on and what they are looking at and those kinds of reinforcements. There was also an issue in this case with supervision.There were three people involved in the surgery, an attending, chief resident and junior resident, all of which is very typical. ...So there’s the issues of supervision that are always present and are very difficult for the physicians to deal with because they are trying to manage quite few patients and be many places at the same time, but still, it is problem that is being focused on more now at our institutions to make sure that there is appropriate coverage at all moments in the case. Then finally, there were some documentation issues, not lot in the record as to informed consent, who was involved in the case, the names of the people involved in the case and then exactly what the patient was told about this error. None of it really affected our ability ultimately to resolve the case, but it doesn’t help in that it sort of supports the notion that things weren’t being done with an awful lot of attention to detail and to the patient when the record doesn’t contain all the information that it should.

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About the series

Even in the safest healthcare setting, things can go wrong. For more than 40 years, CRICO has analyzed MPL cases from the Harvard medical community. Join our experts as they unpack what occurred and the lessons learned for safer patient care from the causes of these errors.


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