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Wrong-organ surgery: $5,000 fine

By Carol Gentry
6/4/2010 © Health News Florida

A Broward surgeon who performed a gallbladder operation but took out a healthy kidney by mistake wasn’t inept or careless, state Board of Medicine members said Friday.

Indeed, Bernard Zaragoza of Coral Springs is quite a good doctor, they said. He just had bad luck.

The 83-year-old patient he operated on had unusual anatomy: His kidney was located where his gallbladder should have been. Zaragoza cut the kidney out before discovering that.

“I was completely mortified,” he said. “It’s a complication I never heard of, dreamed of, or imagined could happen.”

The board sympathized – one even said he’d feel comfortable having Zaragoza operate on a member of his family -- but couldn’t dismiss the case. That’s because a state hearing officer issued a ruling that the board couldn’t ignore.

Experts on gallbladder surgery, including one brought in by the prosecution, testified that the case was unusually difficult, and not just because of the anatomical quirk. The patient had undergone previous abdominal surgeries that left internal scar tissue blocking Zaragoza’s view and forcing him to operate at an unusual angle for the laparoscope and instruments.

The doctor’s attorney argued that the kidney removal was a complication of surgery, like an infection; it doesn’t mean anyone was to blame.

But Hearing Officer Larry J. Sartin said the removal of a kidney doesn’t qualify as a complication of a gallbladder removal. When Zaragoza took out the kidney, Sartin wrote, he violated the medical practice act, pure and simple.

Sartin’s recommended penalty, mainly a $5,000 fine and 50 hours of community service, was relatively mild for a wrong-procedure violation. But Zaragoza faces reimbursement of $25,000 for the state’s costs of investigation and prosecution. Courts have ruled that the losing party must pay costs for the winner.

Such a sanction is unfair, said the doctor’s attorney Rolando Diaz, because “he did nothing wrong.”

Dr. Jason Rosenberg, a member of the medical board, sympathized. “If I could make these costs go away, I would,” he said. “But we just can’t.”

The operation occurred in October 2007 at Northwest Medical Center in Margate. The patient, identified in state records only by the initials J.C., died of heart failure three weeks after the surgery.

An administrator for the hospital reported the wrong-organ removal to the Agency for Health Care Administration, as required for serious foul-ups in hospitals. AHCA notified the Department of Health, which regulates health-care professionals.

Zaragoza is a summa cum laude graduate of University of Miami and earned his medical degree from Harvard. He performed a five-year surgical residency at New York Medical College's Westchester County Medical Center and is board-certified in general surgery. 

--Carol Gentry, Editor, can be reached at 727-410-3266 or by e-mail.