A Missouri lawsuit has been filed against a hospital and neurosurgeon for allegedly operating on the wrong side of a woman’s skull and brain.
Approximately five years ago, after a series of mini-strokes, 53 year old Plaintiff began having health issues. Plaintiff was scheduled for a “left-sided craniotomy bypass” – instead, she received a “right-sided craniotomy surgical procedure.” The second, and correct surgery, was performed six days later. The craniotomy bypass surgery was intended to prevent further strokes.
Her speaking ability had previously been affected, but prior to the recent surgeries, her speech was understood by family members. Now, she is unable to speak intelligibly. It is alleged that before the incorrect surgery, Plaintiff was mobile, cognizant, and able to care for herself. She now requires around-the-clock care for her basic needs. Just an awful story.
In 2010, The Journal of Neurosurgery identified 35 documented cases of wrong-side craniotomies in the U.S. from 1966 to 2009. It was concluded that there were probably additional cases that were settled and never brought to the attention of the state medical licensing boards, courts, and news organizations.
The lawsuit, which calls the error, “a surgical mishap,” asks for punitive damages, “sufficient to punish” for what it characterizes as, complete indifference to or conscious disregard for the safety of the Plaintiff. The suit alleges that the Plaintiff will continue to suffer from emotional distress, anxiety, disfigurement and depression.
The Missouri Senate is considering a bill that would place a cap on noneconomic damages in future malpractice cases. Unlike Maryland, Missouri currently has no comprehensive cap on medical malpractice awards, as the Missouri Supreme Court struck down the cap as unconstitutional, despite the fact that the court has upheld a noneconomic cap of $350,000 in wrongful death cases.
Caps on noneconomic damages are, in my opinion, the wrong way to go. This case is the poster child for this argument. But I’m not sure punitive damages are necessarily a wise choice here. The doctor screwed up – royally – and his insurance company should be forced to compensate the Plaintiff. But he did not try to hurt her and that, in my opinion, is what punitive damages ought to be for.