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.
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
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 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.
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.
How Much is Your Injury Claim Worth?
Find out now with a FREE case review from an attorney…
Visitor Questions on Surgical Malpractice
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Negligence not known about until a year after the surgery? My mother had back surgery in August 2013. She was told it could take up to a year for her to heal after surgery. She awoke from surgery with a paralyzed leg as well as a new, different type of intense pain on that side of her body. She had to work extensively, both alone... Read More >>
Suing a former doctor who no longer has malpractice insurance? My Dad had a prostate seed implant in 2006, with no problems at all afterwards. Then in 2012, his urologist told him he needed a TURP done (Transurethral Resection of the Prostate). The doctor made a surgical error during the procedure, which caused excessive bleeding through the catheter after a day. Then the doctor decided... Read More >>
Foot surgery gone wrong… I am a 43 year old male from WI. I had heel spur plantar fascia surgery on Jan 15, 2015. My surgeon assured me that 29 of 30 patient surgeries per year end in relief or success. After my surgery, he told me and my wife that he had a hell of a time and... Read More >>
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Contracted MRSA due to contaminated metal in cervical spine… I contracted MRSA and now a secondary staff infection after surgery at C-3 to T-1 and metal was implanted in my spine. I was not told of the MRSA infection for almost 3 weeks, at which time it was a raging infection. I had 4 months of a pic line infusion daily and a wound... Read More >>
Botched Tummy Tuck Surgery… I recently had a tummy tuck surgery. I personally paid for procedures that I was told I would receive, and right before surgery the Dr changed the plan. He said part of the procedure that I had said I wanted and paid for, which was a Muscle Repair (a normal part of a tummy tuck)... Read More >>
Brain surgery for Trigeminal Neuralgia results in major pain… I had brain surgery for Trigeminal Neuralgia in Oct. of 2011 at Mayo Clinic, Rochester, MN. Following the surgery, my right face is completely numb and my right eye has no corneal reflex. I also have severe pain upon moving my right eye horizontally and vertically. I also have severe incapacitating headaches, and I grind... Read More >>
Post op infection after cervical lymph node removal… My son was five when he had an enlarged cervical lymph node. It was recommended that it be removed. His ENT removed the lymph node outpatient and he was sent home. A few days passed and the incision and area surrounding became red and swollen. The surgeon was not available to see him, nor was... Read More >>
Botched hammertoe and 2 toes operated on that were not discussed? A foot surgeon was recommended to me by a podiatrist in my area. It was a simple hammertoe on the left foot, second toe; I was not in a lot of pain, but I knew it would get worse with time. I had good insurance and decided to have the surgery. The toe was straight... Read More >>
Doctor lied about removing ovaries and fallopian tubes? My surgeon was to take my uterus, both ovaries and both fallopian tubes. I was told 2 years ago that I still must have one of the them due to lab test results. I reached out to the surgeon that handled my case and was told that indeed they took out everything. I recently had... Read More >>
Open wound not healing for years after ankle surgery? I fell on December 29, 2012, shattered my ankle, broke my fibula, and fractured my heel. I went to the ER, my ankle was set, and I was sent home to wait for the swelling to go down before surgery was possible. On Dec 31 2012, I had an open reduction and reconstruction of my... Read More >>
Artery damaged during total knee replacement… I had total knee replacement surgery. During the surgery the doctor accidentally cut the popliteal artery. The damage was not noticed until I was in recovery, at which time they called in a vascular surgeon who had to go in through the back of my knee and perform an arterial graft with a vein from... Read More >>
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Botched vaginal hysterectomy… I went in for a vaginal hysterectomy on October 2013. The doctor for whom I signed consent to perform the procedure ended up not being the doctor who performed it. I found this out the day of surgery. My husband stayed in the waiting room during the procedure, which seemed like forever for him. Someone... Read More >>
Hernia repair surgery gone wrong… I had diverticulitis surgery 20 years ago, with a colostomy bag. This was reversed one year later with a second surgery. About five years later I went for a third surgery for incisional hernia repair w/mesh. Four months ago I went for a fourth surgery for incisional hernia repair. They used the laparoscopic method, and... Read More >>
Staph infection from shoulder surgery? I had a broken shoulder and had surgery to repair it. During therapy it became very painful. After about 2 weeks of doing good it swelled up and started draining. That’s when they found out I had a staph infection. I have had 4 more surgeries because the infection kept coming back. I have been... Read More >>
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Joint replacement surgery negligence… I live in Alabama. In Sept. 2009 I saw my podiatrist about severe pain in the joint of my great toe. After some tests and x-rays he recommended surgery, as all of the cartilage was gone, and arthritis had severely damaged the joint to the point there was nothing between the bones. He recommended athroplasty.... Read More >>
Botched knee replacement surgery? My wife had both knees replaced in the last in the last 7 months. Her first knee (left) was done on July 12th 2013, her second (right) was done on December 13th, 2013. The short story is, the Doctor admitted that he made a mistake with his assessment in choosing the right size insert on... Read More >>
Damages for kidney transplant error? I had a kidney transplant. Over the next few months I kept complaining about having “felt better before the transplant.” Several CT scans and ultrasounds showed fluid build-up near the upper pole of the transplanted kidney, and I kept asking if we should be trying to determine why that was happening, but was assured it... Read More >>
Can I sue a surgeon after 4 years? I had a laminectomy/fusion done in August 2009 on my L2-3 and L3-4 vertebrae. I had pains after 1 month of surgery but the surgeon wouldn’t look at it. He said there was no reason. I have just been going to the pain management doctor until this past October. It got to the point where... Read More >>
New doctor said old surgeon screwed up my foot surgery… I had severe arthritis in my big toe joint. I went to the foot surgeon and he had to go in and cut a wafer of my bone out and re-align my toe joint. The problem is, he cut too much of the bone out and now my toe was sticking about an inch off... Read More >>
Do these hand surgery problems constitute medical negligence? I severed one of my extensor thumb tendons between the thumb & wrist on my left hand. I was unable to raise my thumb in a “thumbs up” gesture, nor could I place my hand, palm down on a surface and raise my thumb. I could bend the first knuckle of the thumb in a... Read More >>
Wrong sutures used in surgery… I had TRAM Flap surgery (transverse rectus abdominus myocutaneous). The surgeon used absorbable sutures which opened up within 3 weeks of the surgery, resulting in a massive abdominal hernia. Is the surgeon’s use of the wrong sutures malpractice? What can be done about this? Read More >>
Pneumothorax in my lung… I had a port a cath implanted by a surgeon as an outpatient. I was released by the doctor and told that everything was fine. Later that night I started experiencing heart palpatations and a thumping in my chest. I called the doctor and was told to get a chest x-ray. The x-ray showed a... Read More >>
Vocal cord damaged during surgery… I had surgery done on my thyroid gland. During surgery my vocal cord nerve was cut accidentally by the surgeon. The doctor had a nerve machine to guide him but still messed up. Once I woke up he told me my nerve was cut by accident. I now suffer for my voice sounding as tho... Read More >>
Can I sue my doctor for improper knee replacement surgery? A year ago I had to have a partial knee replacement surgery. Within 2 hours of me being under the knife my husband was told by the doctor that I would need a full replacement. Within 3 months I was not recouping properly and had scar tissue build up. So the Dr. went and did... Read More >>
Chronic Cervical Pain and Poor Treatment… On March 22, 2012, I got a cervical fusion from my C-2 through T-1 vertebrae to cure pain from years of chronic daily cervical migraines. The surgeon sent me for epidurals and pain blocks which did not work. When surgery was first scheduled I was told by the surgeon that he was going to fuse... Read More >>
Back Pain After Laparoscopic Hysterectomy… I had a laparoscopic supracervical hysterectomy a month and a half ago. Afterwards I had very bad pain in my lower back. When I went for my follow up I told the doctor about the pain and they ordered an MRI. The MRI showed a “L5-S1 small left poterolateral disk protrusion” which causes “slight impingement... Read More >>
Avascular Necrosis after Total Knee Replacement Surgery… I had a TKR (Total Knee Replacement). The next day when the bandages were removed my knee had a huge black blister/scab. The home physical therapist asked me what happened. I thought it was just part of the surgery. A week later I went for a follow up and the doctor said it was a... Read More >>
Doctor Placed Screw in Ankle Incorrectly… I had surgery for a broken ankle and the doctor put the screw in my ankle wrong. The screw was rubbing on my tendon, causing a lot of pain, so I went back and he said we needed to operate again. I asked why he said it would be there for a year and he... Read More >>
Achilles Tendon Surgery Malpractice Case? I had surgery on my Achilles tendon. I felt something was wrong so I got a second opinion from another doctor after the surgery. The second surgeon said the original surgery was done completely wrong and I will need to undergo another surgery with a year-long recovery. This will have a highly negative affect on... Read More >>
Suing 2 Orthopedic Surgeons for Failing to Properly Treat Ankle Injuries? I injured my foot and ankle at work in December 2011. I went to the emergency room and had an x-ray taken. The ER physician noticed a piece of bone that had appeared to have chipped off in my ankle area. He placed me in an air cast and told me to see an Orthopedic... Read More >>
Botched Hysterectomy Causes Kidney Problems… I had a hysterectomy back in October 2011. The day following my surgery I felt a flank pain in the kidney area on the left part of my back. I informed the surgeon of the pain but it wasn’t looked into. The pain continued throughout my hospital stay which was 6 days. I kept informing... Read More >>
Achilles Tendon Surgery Malpractice? I lacerated my Achilles tendon about 2 maybe 2 1/2 years ago and had surgery to repair it. About 2 months ago, I removed a piece of glass from the tendon. I have been going through serious pain and have had problems walking, I even have problems sleeping due to nerve pain in the leg.... Read More >>
Botched Knee Surgery… My wife has had 3 major knee surgeries so far, and other procedures to clean up some cartilage. But the pain has only gotten worse, so eventually she got a partial replacement. This didn’t work either so she went back to the surgeon and he told her to go to pain management. The knee became... Read More >>
Left Foot Surgery to Remove Cyst Leaves Scar… Over a year ago, I scheduled an appointment with my Orthopedic Surgeon, who examined my left foot/ankle and ordered an MRI. The diagnosis was “Tenosynovitis”. Options/Treatment included surgical excision & Physical therapy. My Orthopedic Surgeon drained the fluid from my left foot/ankle. Within a week, the lump was back causing continuous pain, especially when I... Read More >>
Med Mal Case for Doctor Leaving Stitches Inside My Foot After Surgery… I had a tendon in my foot fixed back in Sept 2009 which never healed properly. I went to another doctor this March and he said he would have to do surgery again to see what was wrong. When opening up the foot he found two sutures inside the foot that had become infected and... Read More >>