Wrong-Side Surgery Defendant Claims PREP Act Immunity

A Missouri spine surgeon who was sued for medical malpractice in January 2021 has responded that he is immune from the medical malpractice lawsuit pursuant to the Public Readiness and Emergency Preparedness Act (PREP Act) that was activated to respond to the COVID-19 pandemic.

The defendant spine surgeon reportedly admitted that he operated on the wrong side and the wrong level of the plaintiff’s spine and even attempted to obtain the plaintiff’s permission while she was waking up from anesthesia in the recovery room to allow him to immediately bring her back to surgery to perform surgery on the correct side: “He did try to get me to authorize right when I was waking up for him to put me right back under to go on the correct side and redo the surgery, but my charge nurse would not let him get authorization because I wasn’t fully awake.”

The woman claims in her Missouri medical malpractice lawsuit that the defendant neurosurgeon was supposed to perform a right-sided hemilaminectomy to address her right-side disc issue that was causing intense back pain but the neurosurgeon noted in his record: “I thought that we were at the correct side and correct level [and] I discussed with the patient about the mistake.” The plaintiff alleges “When he noticed that he was on the wrong side, he did try to go under the spine going in through the spots where he wasn’t supposed to be.”

The plaintiff alleges that she agreed to allow the defendant neurosurgeon to redo the surgery the following day but after that surgery her pain was worse than before the first surgery: “I’m always in constant pain. I kind of feel like I would have been better off not even doing it at all.”

The defendant’s response to the plaintiff’s Missouri medical malpractice lawsuit argues that “Dr. Chen is immune from liability for the alleged acts or omissions pursuant to the Public Readiness and Emergency Preparedness Act (PREP Act).”

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PREP Act

The Public Readiness and Emergency Preparedness Act (PREP Act) authorizes the Secretary of the Department of Health and Human Services (Secretary) to issue a PREP Act declaration. The declaration provides immunity from liability (except for willful misconduct) for claims:

  • of loss caused, arising out of, relating to, or resulting from administration or use of countermeasures to diseases, threats and conditions
  • determined by the Secretary to constitute a present, or credible risk of a future public health emergency
  • to entities and individuals involved in the development, manufacture, testing, distribution, administration, and use of such countermeasures

A PREP Act declaration is specifically for the purpose of providing immunity from liability, and is different from, and not dependent on, other emergency declarations.

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The Missouri medical malpractice plaintiff’s lawyer stated, “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.”

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If you or a loved one may have been injured due to medical negligence in Missouri or in another U.S. state, you should promptly consult with a Missouri medical malpractice attorney (or a medical malpractice attorney in your state) who may investigate your possible malpractice claim for you and represent you or your loved one in a medical negligence case, if appropriate.

Visit our website to be connected with Missouri medical malpractice lawyers or medical malpractice lawyers in your state who may assist you with your malpractice claim, or call us toll free at 800-295-3959.

Turn to us when you don’t know where to turn.

This entry was posted on Tuesday, June 1st, 2021 at 5:27 am. Both comments and pings are currently closed.

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