INVESTIGATION: Surgeon v. Surgeon in wrong-side surgery case

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OKLAHOMA CITY -- Wrong-side surgery is one of the rarest kinds of medical errors.

There are only a handful of cases in Oklahoma in the past ten years.

The most recent allegation surfaced in January, when a patient filed a civil lawsuit against his surgeon.

The case is particularly interesting because the patient is also a surgeon, suing his doctor for operating on the wrong side.

Surgeon versus surgeon.

Doctor Craig Summers is the plaintiff in the lawsuit, the patient.

Summers is an ear-nose-throat surgeon who can no longer practice because of the spine surgery he had in 2011.

Summers' lower-back pain started a few years ago.

He thought his only option was surgery.

"I needed an operation to unroof bone and clear out bone that was pressing on the nerves because that was what was really causing me terrible right leg pain; burning pain and weakness and numbness." said Dr. Summers.

The surgery is called a laminectomy: removing bone from several levels of the spine so the nerves are no longer pinched.

Three neurosurgeons recommended spinal surgery on the right-side only.

Dr. Summers chose Dr. Stewart Smith at Integris Baptist Hospital.

Dr. Summers remembers being prepped on the day of surgery, last November.

"One of the Integris staff came into the room and said, 'Hello Dr. Summers are you ready for your left sided spinal surgery?' I said. 'No. I'm not here for a left sided spinal surgery. I'm here for the right.' She said. 'Oh. Well let me go check.' And it wasn't long before another staff at Integris came in and said, 'Well are you ready for your left sided spinal surgery?' And I said, 'No. We're not ready, at all. We're doing the right.'" recalled Dr. Summers.

According to the pre-operative consent form Dr. Summers agreed to right-side spinal surgery.

In the operative report, the surgeon's notes for the two and a half hour procedure, the word "left" doesn't appear in the report at all.

However, after surgery Dr. Summers had excruciating pain on his left side.

Summers said he asked the staff and was told left-side pain was normal.

"I knew something was wrong. I just knew something was wrong." said Dr. Summers.

A week after surgery doctors at Integris Baptist took an MRI to prepare for a second surgery to fix a complication, a spinal fluid leak.

If you look at the before and the after MRI images, the bone appears to have been removed on the left side of the spine.

A written Integris report confirms that surgical finding: a left laminectomy.

Dr. Summers now has four expert medical opinions from neurosurgeons in Oklahoma City, Dallas, New Jersey and in Seattle, Washington all saying the same thing, wrong-sided surgery.

One expert notes, "This was a mistake."

"I have absolutely no doubt I had wrong-side surgery." said Dr. Summers.

Oklahoma Medical Association past President Dr. Jack Beller said every operating room in the country should follow a mandated protocol to prevent wrong-side surgery.

The protocol is called the time-out.

"It is the responsibility of every member of the health care team at each step to be cognizant of the fact that we have the right patient, the right procedure is being done, and it's on the right side of the body." said Dr. Beller.

About a month after surgery, the patient, Dr. Craig Summers sued his doctor, Dr. Stewart Smith, claiming Dr. Smith did wrong-side surgery and tried to cover up his mistake.

Here is the civil lawsuit filed in District Court in Oklahoma County.

Dr. Smith did not agree to speak with NewsChannel 4 regarding the lawsuit or the surgery or the allegation of wrong-side surgery.

However, he recently gave a deposition under oath, on-camera, in preparation for the civil lawsuit.

In the deposition, Dr. Smith explains the reason his patient might think he had left-sided surgery is because Dr. Smith did make Dr. Summers' incision on the left side of his spine.

Dr. Smith said he enters the spinal column from the left, even when doing right sided surgery.

Dr. Smith's lawyers tell NewsChannel 4 the Integris radiologist who originally read that MRI noting a "left sided laminectomy" actually changed his finding when he was told about Dr. Smith's technique.

"I`m a right-handed surgeon, and it`s easier on me to go from the left side to operate." said Dr. Smith during deposition.

Is this a case of medical malpractice or medical miscommunication? 

Dr. Smith said he explained his left-sided approach to Dr. Summers before surgery.

Dr. Summers said he was never told about a left-sided approach by Dr. Smith, and did not agree to a left-sided approach for surgery, even though he understood a surgeon could enter the spinal column through the left to get to the right.

Dr. Summers and his lawyers are quick to point out dozens of CT scans and MRI images showing before and after surgery snapshots of his spine.

They say all of the images show bone and ligament removed on the left side, not the right.

"I'm incensed that Integris and their attorney take the position that this is just a serious misunderstanding on my part, and that I don't understand spine surgery. Well, I understand enough about surgery to know right versus left." said Dr. Summers.

Attorney Noble McIntyre specializes in medical malpractice law.

McIntyre is not involved in this case, but said even more important than the MRI images and the discussion about medical technique, is the paperwork the patient signed before surgery.

The consent.

On paper Dr. Summers consented only to right-sided spinal surgery.

Dr. Summers did not consent to left-sided surgery.

Dr. Summers did not consent to the left-sided approach.

"There's a consent form saying you're going to have a right-sided surgery. But a left-sided surgery was done. There is no consent form that says left sided surgery. So you're left with either admit it, or make something up to detract from it." McIntyre said.

When asked about that consent paperwork Dr. Smith admits there is no mention of the left-sided approach in the consent because he said it's typically left out.

Dr. Smith said his staff often leaves out the words "right" and "left" because they are confusing to patients and staff.

Dr. Summers, the patient, believes he is the victim of wrong-side surgery at the hands of a surgeon has been skillfully covering up his mistake from the beginning.

"When a surgeon and a hospital do something outrageously wrong, and on top of that don't confess to it, and they lie to you about it, and hope that you go away, that's wrong on so many levels." said Dr. Summers.

It appears this case will go all the way to trial, surgeon versus surgeon.

Neither surgeon is interested in a settlement.

A jury will decide.

Integris Baptist Hospital has also issued a statement about this case as the hospital is named in the lawsuit:

This litigation began as a "wrong side" surgery claim. Dr. Summers alleged that Dr. Smith performed a left-sided spinal decompression instead of a right-sided spinal decompression. Dr. Smith has maintained from the very beginning (just as he explained to Dr. Summers pre-operatively), the surgery he performed involves an approach from the left in order to best reach and decompress the far lateral recess area on the right. Dr. Smith has provided Ch. 4 with medical literature containing illustrations and descriptions of this left-sided approach which includes bone removal. A bone-window or “porthole” is made on the left side to provide the best view of the right side, the side that is actually being decompressed. Dr. Summers conceded in his deposition that the left-sided approach is indeed a surgical option. Rather than admit this was not a wrong-side surgery, Dr. Summers is now claiming an issue of consent. He alleges he did not consent to the left-sided approach. This is sharply disputed by Dr. Smith who maintains he did explain the left-sided approach to Dr. Summers, and that was the surgery they both agreed upon. In short, the lawsuit is now simply a dispute between two physicians on what was discussed preoperatively. Both the Joint Commission and the State Department of Health conducted investigations in this matter and found there was no merit to Dr. Summer’s claims. It will now be up to a jury to hear the evidence and decide the case.

Dr. Craig Summers also filed a complaint with the Oklahoma State Board of Medical Licensure.

The Board has an open investigation on the wrong-side surgery case against Dr Smith.

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