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Franklin Co. woman says she's still fighting for money after wrong-site surgery

A Franklin County woman told our I-Team a surgeon operated on the wrong part of her spine not once but twice.

ST. LOUIS — One woman told our I-Team that a surgeon operated on the wrong part of her spine not once but twice. She took the surgeon to court, and a jury ruled in her favor.

“I had a lot of back pain," Natalie Avilez, a medical malpractice plaintiff who lives in Franklin County, said. "After trying a lot of pain medication and seeing pain management, they referred me to see a specialist and he suggested that I have the disc herniation surgery." 

“Very standard procedure, right?” asked the I-Team's Paula Vasan.

“Yes," Avilez said.  

When Avilez woke up at Mercy Hospital South, she realized her surgeon made a mistake.

“It was on the wrong side," she said.

Her doctor Fangxiang Chen explained the problem. Then the next day, Avilez agreed he could try again.

“Actually, went in on the wrong level ... removed parts of my bone that did not have to be removed ... it was 10 times worse," she said. 

She filed a lawsuit. 

After two years of court battles, a jury sided with Avilez last month. But she still hasn’t seen a dime. The hospital plans to appeal a $1 million verdict, which was reduced to roughly $450,000 to comply with state law.

Her lawyer, Morgan Murphy, said Avilez will not receive that entire amount since she has to pay for attorney's fees and court costs. Her expenses could increase based on how long the court process takes.

“It can take a very long time," Murphy said.

Murphy said the hospital system never accepted blame. 

“It is very difficult to hold hospitals and doctors accountable when doctors and hospitals commit malpractice," she said.

What Avilez went through is called “wrong-site surgery.” It means surgery wasn’t done in the right place. 

Research published in the Journal of the American Medical Association shows it’s rare: a small fraction of a percent of all surgeries. 

We wanted to know how often these types of surgeries are happening in Missouri. We looked at insurance data based on people who filed and closed medical malpractice claims between 2016 and 2021, published by the Missouri Department of Commerce and Insurance. 

State records show there were 142 surgeries done on the wrong body part. Nine surgeries involved the wrong patient. Avilez wouldn’t be counted in the data because her claim is still open.

It’s one reason why Murphy said she believes the numbers don’t show what’s actually going on. 

“But that information to be available, for the public to find out, would have to be voluntarily reported by either the doctors who are performing the surgery on the wrong side of the spine or the hospitals where it's happening," Murphy said. 

When it comes to medical malpractice, there are repeat offenders. The Missouri Association of Trial Attorneys said a very small percentage of doctors are responsible for the majority of malpractice payouts. 

Often, there’s no action taken against them. Most doctors keep their clinical privileges and their licenses. They stay in business.

The Health Resources and Services Administration, an agency of the U.S. Department of Health and Human Services, oversees the National Practitioner Data Bank (NPDB), which requires hospitals and other health care entities to report professional review actions that adversely affect medical practitioners, some of which might be the result of medical mistakes. 

It also requires the reporting of medical malpractice payments made on behalf of individual practitioners, some which may be the result of medical errors. 

A spokesperson with the NPDB said: “The NPDB data set is not comprehensive enough to allow us to provide data or make estimates on the rate of medical errors.”

Murphy said Dr. Chen is still working as a surgeon.

“How are people supposed to know his history?” asked Vasan.

“There's really almost no way to know about it," said Murphy.

It’s because over the last three decades, there’ve been more and more laws to protect doctors, according to Missouri Association of Trial Attorneys. These laws place limits on compensation for people who’ve been injured. 

The medical industry often argues these reforms are needed to lower insurance rates for doctors. But patients and plaintiffs' attorneys say better protection for doctors leads to secrecy, more errors, and lack of justice for people like Avilez. 

Missouri Senate Bill 51 was passed in 2021. It shields Missouri businesses and medical providers from all lawsuits related to COVID exposure. It was backed by the hospital industry and sponsored by State Sen. Tony Luetkemeyer  (R-District 34). Several states have already passed similar laws. 

Murphy, Avilez’ lawyer, said that the bill could allow doctors to claim immunity for a range of malpractice claims, not just those directly related to COVID.

"So, a doctor or health care provider or nursing home could claim that their activities are impacted by COVID-19 if they are wearing a face mask while treating a patient. And the law the way it's written would provide very broad immunity in those circumstances potentially,” Murphy told our I-Team in May 2021, when we first reported on Avilez’ case. 

Missouri Senate Bill 591, passed in 2020, was sponsored by former Republican Senator Bill White. This bill changed the standard for punitive damages for patients to a much stronger standard, more similar to something used in criminal cases. Attorneys said this makes it harder for patients to hold doctors accountable.

Missouri Senate Bill 239, sponsored by Republican Senator Dan Brown, passed in 2015 and put caps on the number of damages a plaintiff could recover after being the victim of medical malpractice. The Supreme Court had thrown out caps as being unconstitutional and the legislature put them back into place. 

Missouri House Bill 273, filed in 2023 by Republican Representative Alex Riley, could impact victims of medical malpractice by changing the way information about the cost of medical care is used in the case.  

Since her operation, Avilez, a mother of five, has gotten a therapy dog to ease her anxiety. 

She no longer has a job. She no longer takes her kids to all their soccer and baseball games. Just moving around the house, she said, is too excruciating. 

“It just radiates through my whole back," Avilez said. 

She said she’ll keep fighting through the pain.

“Don't stay quiet. It's always good to speak up because it can help somebody else. I'm just glad I made it out of the surgery, able to still walk and be here today for my kids and my family," she said.

A Mercy spokesperson tells 5 On Your Side they immediately disclosed their mistakes. They say the second operation on Avilez started off at the wrong level due to an unknown issue with her ribs -- a risk they had told her about earlier. They also say they’re pleased Avilez has had pain relief since then. She said the pain has only gotten worse. 

A Mercy spokesperson told 5 On Your Side in an email: 

We immediately disclosed the wrong side error, apologized and offered to perform the planned surgery while the plaintiff was still in the hospital, which the plaintiff accepted. The second operation started at the wrong level due to an unknown anomaly with the plaintiff’s ribs, a risk of the procedure that was disclosed to the plaintiff prior to both surgeries. The planned level was addressed during that same operation. All care was provided at no cost to her while she was in the hospital and until she reported to her providers she had recovered. We worked with the plaintiff before the trial in hopes of reaching a settlement, but unfortunately, we were unable to reach an agreement. The jury reached a $1 million verdict, but the court lowered that amount to $457,749 to comply with Missouri law. While we respect the jury’s decision, we plan to appeal the verdict, and we continue to discuss resolution with the plaintiff’s attorney. We will follow standard legal practice by filing a bond with the court to hold the verdict amount in trust pending the appeal process. We are pleased that the plaintiff has had significant pain relief following the surgery.

Want to get in touch with Paula about this story or another investigative tip, email paula@ksdk.com. 

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