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Surgeon removes kidney by mistake

By Carol Gentry
6/10/2009 © Health News Florida

Broward surgeon Bernard Zaragoza is clearly an expert on gallbladders: Harvard-trained, board-certified, with close to 2,000 successful operations over 15 years. What happened on Oct. 2, 2007, proves that anyone can slip. That day, he took out a kidney by mistake.

The kidney in question belonged to an 83-year-old man, identified in state records only by the initials J.C., who entered Northwest Medical Center in Margate for laparoscopic removal of his chronically inflamed gallbladder.

It should have been a short, uneventful stay. Laparoscopic surgery is a modern, minimally invasive alternative to the traditional gaping abdominal incision. It requires the surgeon to operate without being able to see what he’s doing, at least not directly. Instead, the surgeon watches on a projection screen, moving tools on rods he’s placed into the abdomen through small incisions. Those include retractors, a lighted scope and cutting tools.

In J.C.’s case, Zaragoza removed what he thought was the gallbladder and sent a sample to the lab. When the pathologist reported what the specimen actually was, Zaragoza was stunned, in shock.

“I was completely mortified,” he told the Florida Board of Medicine last weekend at a hearing in Fort Lauderdale. “It’s a complication I never heard of, dreamed of, or imagined could happen.”

With delicious irony, the board at that same meeting heard a presentation on the rarity of major surgical goofs. Between 2006 and 2008, the report says, Florida medical board had only 141 cases of “wrong-side surgery” -- a category that includes wrong-patient, wrong-procedure, etc. – three-fourths of which involved no lasting harm.

Board member John Beebe, chairman of the board’s Finance and Statistics Committee, said that came to an incidence rate of just 1 in 100,000 operations. Any manufacturer would be proud of such a record, he said, especially considering that surgery has two high-risk factors: complexity and human involvement.

“The reality is that wrong-side surgery in the state of Florida is like the proverbial needle in the haystack,” Beebe wrote in his report.

But then there was Zaragoza. A surgeon who reviewed the case for the state Department of Health, Christian Birkedal of Ormond Beach, said the operation was more difficult than most because the patient had “adhesions” – scar tissue -- that distorted the abdominal cavity. Birkedal’s report said Zaragoza should have opened up the abdomen when he ran into trouble.

Instead, Zaragoza hunted around for the gallbladder; he even took a CT scan. He found what he concluded must be the gallbladder, even though it didn’t look like one. He assuming its odd appearance meant it must be covered by a tumor.

That decision made, he severed the blood vessels, removed the organ and sent a sample to pathology. Then came the bad news.

At that point, records show, Zaragoza opened the abdomen, found the real gallbladder hiding under a loop of intestine and removed it. Following surgery, he bravely admitted the error to the family and properly recorded it in the records.

An administrator for the hospital reported the incident to the Agency for Health Care Administration in a so-called “Code 15” report, as required by law for serious foul-ups in hospitals. AHCA notified the Department of Health, which regulates health-care professionals.

Zaragoza never tried to pretty up the facts; he offered to assist the investigators any way he could, the records show. Still, it took DOH more than a year to bring the case to the Board of Medicine. By then, J.C. was long gone.

The old man died less than three weeks after the surgery, under hospice care, according to DOH records. While he had developed a postoperative infection and pneumonia, the death certificate attributed his demise not to the operation but to heart failure.

DOH prosecutors and Zaragoza came up with a proposed settlement to present to the Board of Medicine. It called for a $5,000 and a letter of concern, a discipline so mild that it wouldn’t trigger a report to the National Practitioners Data Bank.

But such settlements have to have the consent of the medical board, which is where this one hit a bump. Jacksonville surgeon Robert Nuss felt it was not severe enough.

“This is not a normal or routine complication of surgery,” he said. “I think this is egregious.”

On a 6-6 tie vote, the board rejected the settlement agreement and counter-offered one that was more serious: a reprimand, $10,000 fine and other standard penalties, such as community service and taking classes. That passed 7 to 6.

Zaragoza has some time to decide whether to accept the counter-offer, which could ruffle his relationships with insurers. He has until seven days after the offer is received in writing, probably about two weeks.

If he rejects it, the case will go to the Division of Administrative Hearings for a formal hearing with expert witnesses, depositions, and a mountain of legal motions, enough to absorb the next two years and many thousands of dollars.

Zaragoza will get to relive his mistake over and over and over.