I Operated on the Wrong Nevus

Dermatology Times, Dermatology Times, June 2021 (Vol. 42, No. 6), Volume 42, Issue 6

In this month's Legal Eagle column, David J. Goldberg, MD, JD, dives into wrong-site surgeries and malpractice lawsuits.

Dr Mole is a well-respected dermatologist who sees countless patients for total body examinations. He is well-known for his expertise in dermoscopy and dermatologic surgery. He holds an academic title and lectures nationally on pigmented lesions. 

Mole also sees many patients on a referral basis from other dermatologists. All patients referred to him are required to bring biopsy reports. Some even come with photographs of the biopsied area. Most patients have a pretty good idea of where on their body the biopsy was taken. 

Two years ago, Mole saw a patient with a biopsy-proven dysplastic nevus with severe atypia. During the initial consultation, the patient also brought a photo of the involved area. 

The patient signed consent forms during the in-person consultation. Because the patient was so anxious about the upcoming surgery, Mole suggested taking antianxiety medication prior to surgery. 

On the day of surgery, Mole’s patient took a double dosage of the antianxiety medication. The patient was sleepy and confused upon entering Mole’s office. Unfortunately, it was not a good day in this practice. Mole’s certified physician assistant provided local anesthesia to the wrong site. Mole then removed a significant segment of skin from that location.

As the staff began to teach the patient appropriate wound care, the patient’s family noticed that surgery was performed on the wrong site. Needless to say, they were appalled. They never returned to the office and filed a medical malpractice lawsuit and a claim with Mole’s state board of medical examiners. Now what?

Unfortunately, wrong-site surgeries do happen. More than 2 decades ago a world-renowned New York neurosurgeon lost his medical license for operating on the wrong side of a patient’s brain. Hospitals also have been penalized for allowing wrong-site surgeries.

Wrong-site surgery is considered a “never event.” Medicare does not pay for repeat surgery if the first one is on the wrong body part. A number of private insurance companies have followed suit. 

Wrong-site surgery is preventable.

One way to decrease the likelihood of such potentially mutilating and certainly unfortunate events from happening is to get the patient more involved. Prior to surgery, explain to the patient the importance of operating on the proper side of the body. Give the patient a marker to label the spot. Direct them to initial the appropriate location of the site on the body for consent. Double check the location on the day the patient arrives for surgery. 

Other steps should also be taken. Schedule a “time out” before cutting. Have more than 1 team member identify the proper spot. Verify the site with any preop biopsy report, photos, and the consent form. Most patients will appreciate the extra attention paid to this process. 

Patients are sometimes unclear as to the exact location of a biopsy. In some instances, biopsies are mislabeled. There are many times when there are no photographs. However, the hallmark of medicine is to do no harm. It is a clear-cut breach in the standard of care to operate on a site when, as in this case, the potentially malignant melanoma was present elsewhere. 

Once the malpractice case is filed based on the above fact pattern, most attorneys would advise Mole to settle the case out of court. Similarly, Mole needs to try to settle with the state board of medical examiners.