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Patient of Hysterectomy Surgery Awakes with Disabled Leg

We received a call from a 50 year old female patient who went into the hospital for a hysterectomy. When she awoke from the surgery, she had a severely disabled leg. She had very limited control in her leg. Apparently, the surgery that was anticipated to last 2 hours, lasted almost 8 hours. The allegation was that there was a positioning error. The positioning error could have been that she was improperly positioned, improperly padded, or not properly re-positioned throughout the surgery. Obviously one of the problems in positioning cases, is that the patient is unconscious throughout the surgery. The question that was posed during the evaluation of the potential case had to do with responsibility. In consulting with an OB-GYN/surgeon, an anesthesiologist and a legal nurse consultant, we quickly appreciated that positioning cases are very difficult to clearly establish responsibility. The anesthesiologist’s opinion is often that it is the nurses’ responsibility to properly position and pad the patient, and it is the surgeon, or in this case, the OB-GYN/surgeon who is the “captain of the ship”. It is the surgeon’s opinion most often that he or she is focused on the surgery and positioning is the responsibility of the nurses. Additionally, surgical opinions may include that the anesthesiologist is in the surgery to protect the patient and observe and suggest the need for repositioning. Finally, the legal nurse consultant’s opinion was that, although, padding and positioning is a responsibility of the hospital staff, such padding and positioning is under the instruction of the physician in the surgery suite and re-positioning is only done if so ordered by one of the other doctors. In that we had the inability to point the finger to a specific doctor, nurse or other medical professional, we chose to not take the case and encouraged this patient to consult with another attorney that practices medical malpractice cases in an effort to secure help.
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