Filing a Surgical Malpractice Lawsuit for Injury Compensation



The vast majority of surgical procedures performed each day in the United States are uneventful. Technology has helped minimize errors and improve patient recovery. Sometimes, however, things go wrong, resulting in further harm to the patient.

Surgical malpractice is an act of negligence upon a patient by a surgeon, anesthesiologist, surgical nurse, or other medical staff involved in a surgical procedure. It occurs when a medical professional acts in a manner which "deviates from the standard of care in the medical community."

A legitimate malpractice case must include proof that the surgeon's actions were the direct and proximate cause of harm to the patient. No actual harm, or a minor harm, is not enough to file a medical malpractice lawsuit.

Surgical malpractice comes in several forms, not all directly related to the surgeon. The perception that surgeons are the only medical providers who can be negligent is based on highly publicized malpractice cases, involving sponges or surgical instruments left behind in patients, and surgeons removing the wrong organs, or amputating the wrong limbs.

Most surgical procedures involve a surgical team, consisting of an anesthesiologist, primary surgeon, first surgical assistant, primary operating room nurse, scrub nurse, and circulating nurse, each of whom performs a separate function. Most surgeries are successful, but sometimes things go wrong, and it's not always directly related to the surgery.

Where and When Surgical Malpractice Occurs

There are three phases of surgery: pre-operative, the surgery itself, and post-operative. At any time during these three phases surgical errors can occur. To minimize these errors, most surgeons adhere to a strict routine. Any deviation from the routine can result in error.

Pre-operative miscommunication

It's essential for the surgeon to clearly communicate with the patient before surgery. During the pre-operative discussion and evalutation, the surgeon must identify the patient, determine whether the patient will be able to physically withstand the surgery, and answer all of the patient's questions.

In many cases, the anesthesiologist will also visit with the patient to confirm his or her identity, answer questions about the effects of the anesthesia, and to confirm the patient hasn't eaten for a period of time before surgery (to assure the patient won't vomit during surgery). The surgeon should also cover:

  • The nature of the surgery
  • Reasonable alternatives to surgery
  • Possible risks of the surgery and after-effects
  • Benefits the patient can hope to get from the surgery
  • Informed consent

During surgery

The most critical part of surgery occurs in the operating room. This is when the patient is most vulnerable, and in most cases, unable to communicate with members of the surgical team. To avoid surgical errors, the surgeon must:

  • Have the training and experience to safely perform the procedure
  • Communicate effectively with members of the team
  • Perform surgery on the correct body part
  • Not leave surgical tools in the patient's body

Post-operative actions and omissions

Post-surgery is a critical time for the patient, and when they are at their weakest. During this time, patients are vulnerable to infections and other complications that can negatively affect their recovery. The surgeon may not be directly responsible for post-surgery complications, but he does have a duty to follow up with the patient, answer any questions, and confirm the patient is safe from unnecessary harm.

During post-surgery, danger often comes from the hospital environment. If a room isn't properly disinfected and sanitized, or if a patient is exposed to a sick employee, the patient's health can rapidly decline. The most common infections contracted in hospitals are caused by staph, strep, methicillin-resistant staphylococcus aureus (MRSA), and clostridium bacteria.

Common Surgical Mistakes

Wrong site surgery

Wrong site surgery occurs when the surgeon operates on the wrong part of the body. By so doing, healthy organs may be wrongfully removed, or limbs unnecessarily amputated.

Unnecessary surgery

Unnecessary surgery can occur when a patient is misdiagnosed, when the surgeon is incompetent, when the patient is greedy, when the surgeon misrepresents the need for surgery, or when the surgeon convinces the patient he needs more extensive surgery than is medically required.

Damage to internal organs

Damage to internal areas of the body occurs when the surgeon mistakenly punctures or perforates an organ, artery, connective tissue, intestines, or other internal body part.

Instruments left in patient's body

Surgical instruments such as sponges, retractors, and surgical blades are sometimes left inside the patient's body. The Center for Disease Control published a study confirming each year an estimated 15,000 patients have a surgical instrument left inside their body post-surgery.

Infections and complications

Surgical instruments not properly sterilized before use can transfer bacteria to the patient during surgery. When operating rooms aren't frequently disinfected, they can become contaminated with bacteria and infectious diseases. Also, the surgical team must fully "scrub in" before touching the patient or the surgical tools.

What is the medical standard of care?

Because of the nature of their profession, surgeons are held to an extremely high standard of care. Their mistakes can mean the difference between life and death. Surgeons must stay constantly informed about the latest in medical procedures, diagnostic tools, surgical techniques, and more. While in their care, surgeons must do everything reasonably possible to avoid harm to the patient.

The medical standard of care in one part of the country may be different from another. As a result, the threshold for taking legal action (for a deviation from the medical standard), may change according to the area of the country you're in.

Example: Big City Surgeon

Dr. Smith is a surgeon in a large city. He practices thoracic surgery and has privileges in a state of the art hospital with the latest in diagnostic tools. He misread the results of a patient's MRI, and as a result, during surgery he perforated the patient's lung.

His misreading of the MRI, and perforating the patient's lung, would be considered a deviation from the medical standard of care in Dr. Smith's community, and would likely be considered surgical malpractice.

Example: Country Physician

Dr. Walsh is a family physician who practices general medicine in a rural area of the country. He has limited experience in thoracic surgery, and the closest MRI machine is 300 miles away in the city. In an emergency, he had to perform surgery on a patient with a crushed larynx. Unfortunately, during surgery, Dr. Walsh accidentally perforated the patient's lung.

In this case, Dr. Walsh would not have deviated from the medical standard of care in his community. He performed surgery with the limited diagnostic tools available to him, and with minimal experience in thoracic surgery. He did the best he could with the tools available. Under these circumstances, it's likely surgical malpractice did not occur.

State Medical Boards and Malpractice Attorneys

As a victim of surgical malpractice, you have two primary legal remedies. Either you can file a complaint with your state medical board, or file a medical malpractice lawsuit.

Patients can file their own complaints with their state's medical board. After receiving a complaint, an investigator will be assigned to your case. A surgeon found guilty of malpractice may receive a private or public reprimand, a suspended license, or the board may even revoke the surgeon's medical license.

If the surgeon's malpractice resulted in harm, and you want to pursue a medical malpractice lawsuit, you should seek the counsel of an experienced attorney before filing your complaint with the state medical board.

An attorney can help prepare the complaint, the success of which will make a huge difference in the outcome of your lawsuit. Having the complaint go through, and the surgeon disciplined because you effectively presented your case, can go a long way to convincing a jury of the surgeon's negligence.

Hiring an attorney

Medical malpractice lawsuits should never be handled without legal representation. Surgeons are heavily insured, and they rarely, if ever, admit to malpractice. Any malpractice claim you present on your own would be met by highly paid, experienced defense attorneys.

Request copies of all of your treatment records and medical bills. You have a legal right to all of those documents. Then make appointments to see several attorneys, and bring all of your documentation to the meetings. Most medical malpractice attorneys don't charge a fee for an initial office consultation.

After reviewing your documents and hearing your story, the attorneys will give you their opinions. If you have a legitimate case, they will accept it on a contingency basis. If your attorney successfully settles your case or wins it at trial, she will be paid a percentage of your final settlement amount. If your case is unsuccessful, you will owe nothing.

Case Studies

Plastic Surgery Horror Story
This case study illustrates what can happen when you don't do your due diligence on a physician. Read about the liability factors and settlement negotiations in a botched breast implant case.

Unprepared for Laparoscopic Surgery
A doctor fails to give his patient pre-surgery instructions and doesn't review her chart adequately, resulting in her vomiting violently during the procedure.

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