Wrong-Site Surgery in Oregon: Never Events Explained

A wrong-site surgery is exactly what it sounds like: an incision, procedure, or implant placed where it should not have been — wrong limb, wrong vertebra, wrong eye, wrong patient. Wrong-site, wrong-patient, and wrong-procedure surgery all appear on the National Quality Forum's list of serious reportable events, which PSNet calls "Never Events."¹

This article describes the categories of surgical never events, what an Oregon malpractice claim involves, and the deadlines that govern it.

What "never event" means

The term was first used in 2001 by the former CEO of the National Quality Forum (NQF) for shocking medical errors, such as wrong-site surgery, "that should never occur."¹ The NQF list now has 29 serious reportable events in seven categories.¹ Its category of surgical or invasive procedural events has five items: surgery or another invasive procedure on the wrong site, on the wrong patient, or the wrong procedure altogether; unintended retention of a foreign object after surgery or another invasive procedure; and death during or immediately after surgery or a procedure in an "American Society of Anesthesiologists Class I patient."¹

In Oregon, hospitals and ambulatory surgical centers are among the facilities eligible to report serious adverse events to the Oregon Patient Safety Reporting Program, which ORS 442.837 creates within the Oregon Patient Safety Commission. The statute states: "Participation in the program is voluntary."²

The Joint Commission's Universal Protocol is aimed at preventing these errors. According to AHRQ's Patient Safety Network, "Site marking remains a core component of The Joint Commission's Universal Protocol to prevent WSPEs." The same primer states: "The Universal Protocol also specifies use of a timeout prior to all procedures."³ (WSPE stands for wrong-site, wrong-procedure, and wrong-patient events.) When a wrong-site surgery occurs, the records of those steps are part of what a review examines.

Other surgical malpractice that is not a never event

Not every surgical error is on the never-event list. Other categories of surgical malpractice claims in Oregon include:

• Unintended organ injury — for example, a bowel perforation, a blood-vessel injury, or a nerve injury during surgery. The question is whether the surgeon's care met the standard described below.
• Postoperative complications missed — failure to recognize and treat a developing complication, such as an infection, in the days after surgery.
• Procedures without informed consent — ORS 677.097 requires a physician or physician associate to explain three things: "In general terms the procedure or treatment to be undertaken"; "That there may be alternative procedures or methods of treatment, if any"; and "That there are risks, if any, to the procedure or treatment."⁴ The physician must then "ask the patient if the patient wants a more detailed explanation." The statute continues: "If the patient requests further explanation, the physician or physician associate shall disclose in substantial detail the procedure, the viable alternatives and the material risks unless to do so would be materially detrimental to the patient."⁴ Our post on informed consent in Oregon covers the statute in more detail.

Oregon's standard of care

Under ORS 677.095(1), a physician licensed by the Oregon Medical Board "has the duty to use that degree of care, skill and diligence that is used by ordinarily careful physicians in the same or similar circumstances in the community of the physician or a similar community."⁵

On expert testimony, the Oregon Supreme Court said in Getchell v. Mansfield, 260 Or 174 (1971): "In most charges of negligence against professional persons, expert testimony is required to establish what the reasonable practice is in the community."⁶ The court also said: "On the other hand, if the jury is capable of deciding what is reasonable conduct without assistance from an expert medical witness no expert testimony is necessary to establish the standard of care."⁶ Its example was a surgeon who "operated without sterilization of his instruments."⁶

A claim also looks at causation (what additional harm the wrong procedure caused beyond the surgery itself) and damages (compensation for the additional injury and any corrective surgery).

For unintended-injury and retained-object cases, an expert review looks at the operative report, the imaging, and the postoperative course, and asks whether the care met the ORS 677.095 standard.

Limitations and the discovery rule

ORS 12.110(4) sets the deadline: "An action to recover damages for injuries to the person arising from any medical, surgical or dental treatment, omission or operation shall be commenced within two years from the date when the injury is first discovered or in the exercise of reasonable care should have been discovered."⁷

In Gaston v. Parsons, 318 Or 247 (1994), the Oregon Supreme Court held that "injury," as used in ORS 12.110(4), "consists of three elements: (1) harm; (2) causation; and (3) tortious conduct." The court held that the period "begins to run when the plaintiff knows or in the exercise of reasonable care should have known facts which would make a reasonable person aware of a substantial possibility that each of the three elements (harm, causation, and tortious conduct) exists."⁸

The court also observed: "Although, in many instances, suffering an untoward result after surgery may put a reasonable person on notice of tortious conduct, certain untoward effects can “mask” tortious conduct."⁸ Where a wrong-site error is apparent soon after surgery, that awareness can start the two-year period early.

A retained object may not be identified until later. The discovery rule can delay the start of the two-year period, but it does not remove the outer limit. ORS 12.110(4) continues: "However, notwithstanding the provisions of ORS 12.160, every such action shall be commenced within five years from the date of the treatment, omission or operation upon which the action is based …"⁷

The same sentence then provides a limited fraud exception: "if there has been no action commenced within five years because of fraud, deceit or misleading representation, then within two years from the date such fraud, deceit or misleading representation is discovered or in the exercise of reasonable care should have been discovered."⁷

Public hospitals and OTCA notice

Surgical care performed at OHSU, a county or district hospital, or another public-body provider falls under the Oregon Tort Claims Act. ORS 30.275 requires notice of claim "within 180 days after the alleged loss or injury" for most claims, and "within one year after the alleged loss or injury" for wrongful-death claims, not counting up to 90 days during which the injured person cannot give notice because of the injury or because of minority, incompetency or other incapacity.⁹ Under ORS 30.275(3), notice can be satisfied by formal notice of claim, actual notice of claim, commencing an action on the claim within the notice period, or payment of all or part of the claim by or on behalf of the public body.⁹

The filing deadline is different, too. With listed exceptions, and "notwithstanding any other provision of ORS chapter 12 or other statute providing a limitation on the commencement of an action," ORS 30.275(9) provides that such an action "shall be commenced within two years after the alleged loss or injury."⁹

What a surgical-error case looks like

The work in a surgical malpractice case starts with the operative report, the time-out documentation, the consent paperwork, the imaging from before and after the surgery, and the post-operative records. The review runs along three threads: was the standard breached, what additional harm did the breach cause, and what is fair compensation for that harm.

This article is educational

This article describes Oregon law in general terms. It is not legal advice and does not create an attorney-client relationship.

Time limits matter. Most Oregon personal-injury and auto-accident claims must be filed within two years of the injury or accident. Medical malpractice claims must be filed within two years of when you knew or reasonably should have known of the negligence, with an outer limit of five years from the act itself (with a fraud exception). Wrongful death claims must be filed within three years of the date of death. Claims against public bodies (cities, counties, state agencies, public hospitals) require a notice of claim within 180 days. Missing these deadlines typically ends a case.

If you think you may have a claim, call Huegli Law at 971-317-6436 for a free case review. Todd Huegli is licensed in Oregon and consults on cases in Oregon only.

Footnotes

1. Never Events — PSNet (Agency for Healthcare Research and Quality). https://psnet.ahrq.gov/primer/never-events ↩ ↩² ↩³ ↩⁴

2. ORS 442.837 — Oregon Patient Safety Reporting Program. https://www.oregonlegislature.gov/bills_laws/ors/ors442.html ↩

3. Wrong-Site, Wrong-Procedure, and Wrong-Patient Surgery — PSNet (Agency for Healthcare Research and Quality). https://psnet.ahrq.gov/primer/wrong-site-wrong-procedure-and-wrong-patient-surgery ↩

4. ORS 677.097 — Procedure to obtain informed consent of patient. https://www.oregonlegislature.gov/bills_laws/ors/ors677.html ↩ ↩²

5. ORS 677.095 — Duty of care. https://www.oregonlegislature.gov/bills_laws/ors/ors677.html ↩

6. Getchell v. Mansfield, 260 Or 174, 489 P2d 953 (1971) (Caselaw Access Project). https://static.case.law/or/260/cases/0174-01.json ↩ ↩² ↩³

7. ORS 12.110 — Actions for certain injuries to person not arising on contract. https://www.oregonlegislature.gov/bills_laws/ors/ors012.html ↩ ↩² ↩³

8. Gaston v. Parsons, 318 Or 247, 864 P2d 1319 (1994) (Caselaw Access Project). https://static.case.law/or/318/cases/0247-01.json ↩ ↩²

9. ORS 30.275 — Notice of claim; time of notice; time of action. https://www.oregonlegislature.gov/bills_laws/ors/ors030.html ↩ ↩² ↩³