A neurosurgeon who operated on the wrong side of his patient’s spine claims he can’t be sued because of a federal law that protects health care professionals during a public health emergency, according to a report by KSDK, an NBC-affiliated television station in St. Louis.
Natalie Avilez, who lives in Missouri with her husband and five children, had been suffering from intense back pain. At some point in the recent past (the story doesn’t identify precisely when), she was referred to Fangxiang Chen, MD, a neurosurgeon affiliated with Mercy Hospital and Mercy Hospital South, in St. Louis. Ms. Avilez reportedly claims that Dr. Chen told her that an “easy” surgery – a hemilaminectomy – could relieve her back pain.
Something went wrong during the procedure, however. Dr. Chen ended up operating on the left side of Avilez’s spine instead of the right side, where he had initially diagnosed disk-related pressure. Dr. Chen realized his mistake while his patient was under anesthesia but couldn’t remedy it.
As the patient awakened, Dr. Chen asked her to authorize an immediate right-side surgery, but, as Ms. Avilez told the TV station, her “charge nurse would not let him get authorization because I wasn’t fully awake.” In the recovery room afterward, Dr. Chen explained what had happened to his patient, who permitted him to redo the surgery the following day.
But the redo didn’t remedy Ms. Avilez’s pain; in fact, the second surgery made things worse. “I’m always in constant pain,” she said. “I kind of feel like I would have been better off not even doing it at all.”
In January of this year, Ms. Avilez filed a medical malpractice suit against Dr. Chen and Mercy. But the neurosurgeon made a surprising claim:
Initially passed in 2005, PREP was intended to shield doctors and other licensed health care professionals from liability during a public health emergency except in cases of willful misconduct. On March 17, 2020, then–Health and Human Services Secretary Alex Azar invoked the PREP Act “for activities related to medical countermeasures against COVID-19.”
But could this declaration – which has since been amended multiple times – shield a physician from a claim of wrong-site surgery?
Ms. Avilez’s attorney, Morgan Murphy, doesn’t think so. “Obviously, we are not claiming that COVID had anything to do with the fact that Dr. Chen operated on the incorrect side of Natalie’s spine. It is a fairly straightforward situation. A doctor should never perform the incorrect surgery, period.”
Other observers are less certain that the Chen defense won’t hold. It’s true the PREP Act doesn’t protect doctors against claims of willful or intentional misconduct, says Deidre Gilbert, who leads a national medical malpractice patient-advocacy group. But such claims are, she quickly adds, very difficult to prove, never more so than during a pandemic.
Several states, including Missouri, have passed or are considering additional measures to protect health care professionals against the expected wave of COVID-related claims. (One estimate places the number of those claims at almost 6,000 as of February 2021.) “We want to make sure that there is a heightened standard for holding somebody liable in ... COVID transmission cases,” said the sponsor of the proposed Show-Me State legislation.
As for Ms. Avilez, she feels lucky that she’s not even worse off than she is now. She worries, though, about other patients who are less fortunate and who are told that the pandemic protects their health care professionals from liability. “That’s just not fair,” she says.