Who is at Fault and Comparative Negligence

In Florida, defendants can share in liability for an injury. This case involves a person who went to the
hospital for a total knee replacement in the left knee but incorrectly had a right implant placed in the left
knee. The person had numerous surgeries to repair the knee, but nobody at the hospital told him/ her the mistake had occurred. Finally, someone told risk management and the patient was informed of the mistake, after 4 surgeries.

The potential defendants are as follows:

  1. The surgeon who performed all 4 surgeries without telling the patient the truth,
  2. The medical device knee implant sales person
    who provided the right implant for the left knee at the first surgery,
  3. The hospital for failure to train the operating room staff to follow procedures to prevent this mistake and require immediate reporting of a mistake, even if the surgeon tells them otherwise.


  1. The surgeon found out within 10 minutes after the surgery that the wrong side implant was provided to him/her by the sales person, but instructed the implant sales person and OR staff not to tell anyone and performed 3 subsequent surgeries on the patient without informing the patient of the mistake.
  2. The implant sales person informed the surgeon immediately after the first surgery that he/she had provided the wrong side implant to the surgeon.
  3. The hospital system failed to train the OR staff to do a “time out” before implantation to make sure the correct implant is being used.

Who is at fault?

  • The surgeon
  • The sales person
  • The hospital
  • All three.

There is no right or wrong answer. Just your finding, as a virtual juror.  Cast your anonymous vote below.

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Who is at fault?