Filing a Surgical Malpractice Lawsuit for Injury Compensation

Some of the most devastating medical errors happen during surgery. Here’s what you should know if you or a loved one are victims of surgical malpractice.

Around 28 million operations are performed every year in the United States, and every year patients are injured by surgical malpractice.

Unfortunately, experts believe that medical errors are the third leading cause of death in the United States. ¹

Surgical malpractice is when a patient is harmed by the negligence of a surgeon, anesthesiologist, surgical nurse, or other medical staff involved in a surgical procedure.

It occurs when a medical professional “deviates from the standard of care in the medical community.”

While most surgical procedures performed each day in the United States are uneventful, when things go wrong, the patient can suffer severe damages.

Common Surgical Malpractice Errors

Surgical malpractice comes in several forms. Most 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 surgeon.

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

Unnecessary surgery happens when a patient is misdiagnosed, when the surgeon is incompetent, when the surgeon misrepresents the need for surgery, or when the surgeon convinces the patient they need more extensive surgery than is medically required.

Damage to other body structures occurs when the surgeon mistakenly punctures or perforates an artery, connective tissue, nerves, or other internal organs.

Instruments left in a patient’s body can create serious complications. Surgical instruments such as sponges, retractors, and other foreign bodies are erroneously left inside the patient as often as 1,500 times each year. ²

Infections may be due to malpractice if the surgeon makes a mistake, the surgical instruments weren’t adequately sterilized, or the medical facility where the surgery took place is unsanitary.

Case Summary: Prostate Removed in Error

Rickie Huitt was the victim of one medical mistake after another. Huitt was diagnosed with prostate cancer based on the pathologist’s review of tissue samples.

In April 2017, Huitt underwent surgery to remove a cancerous prostate. Nerves were damaged during surgery, leaving Mr. Huitt impotent and unable to control his bladder. His life was changed forever, as Mr. Huitt felt he had “lost his manhood.”

After the damaging surgery, Huitt learned he never had cancer. The tissue samples were from another man, who did have prostate cancer.

Attorneys for Mr. Huitt filed a lawsuit against the Iowa Clinic, alleging malpractice for the wrong diagnosis and unnecessary surgery. The jury awarded Mr. Huitt $12.5 million for his injuries, pain, and suffering.

When Malpractice Occurs During Surgery

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 errors, most surgeons stick to a strict routine to cover all the bases.

Pre-operative Communication is Critical

It’s essential for the surgeon to communicate with the patient before surgery. It’s equally important for the patient to be honest and up-front with the surgeon.

During the pre-operative discussion and evaluation, 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.

During pre-op, the surgeon should 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
  • Expected recovery time
  • Informed consent

In many cases, the anesthesiologist will also visit with the patient to answer questions about the effects of the anesthesia, and to confirm the patient hasn’t eaten before surgery.

Preventing Errors During Surgery

The most critical part of surgery occurs in the operating room, when the patient is most vulnerable and unable to communicate with the surgical team.

To avoid surgical errors, the surgeon must:

  • Have the training and experience to perform the procedure safely
  • Communicate effectively with members of the surgical team
  • Perform surgery on the correct body part
  • Account for all surgical tools and sponges before closing

Post-operative Patient Safety

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 has a duty to follow up with the patient, answer any questions, and confirm the patient is safe from unnecessary harm.

Post-surgery complications and infections can be deadly for a patient weakened from the procedure. The surgeon should be on the lookout for potential problems and act quickly when a problem arises to prevent rapid patient decline.

Understanding Medical Standards of Care

Because of the nature of their profession, surgeons are held to an extremely high standard of care. Surgical 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.

Surgeons must do everything reasonably possible to avoid harm to the patients under their care.

Not every poor patient outcome is caused by malpractice. Many patients who undergo surgery are already critically ill. The surgeon may do everything reasonably possible to save the patient to no avail.

The medical standard of care is legally defined as:

“the type of care a reasonably competent physician, practicing the same type of medicine [your physician practices], would have provided under the same circumstances.”

Each malpractice case must consider the condition of the patient, the circumstances of the surgery, and the surgeon’s training and experience while taking into account out what the standard of care should have been for the patient.

The standard of care isn’t carved in stone. What is “reasonable” depends on the circumstances.

For example, if you are in a car crash in a remote area and need emergency surgery during a winter storm, the general surgeon at the local hospital will do the best they can to prevent further harm.

Let’s say the surgeon had to cut you open to repair internal bleeding because they didn’t have the equipment or training for laparoscopic surgery. Your recovery is longer and more painful because your belly was cut open.

In this situation, you won’t get far with a malpractice claim because the doctor correctly did everything reasonably possible under the circumstances.

On the other hand, if you’ve been rushed to a major medical center filled with the latest technology and the specialists who know how to use it, the standard of care might be to stop your internal bleeding with a less invasive procedure.

To prove surgical malpractice, you will have to show:

  1. The surgeon owed you a duty of care
  2. What the surgeon should have reasonably done under the circumstances
  3. What the surgeon did wrong or failed to do that violated the standard of care
  4. The surgical error was the direct and proximate cause of your damages

Damages from surgical malpractice can include:

  • The expense of additional medical care and rehabilitative services after the surgery
  • Out-of-pocket expenses for medications, wheelchairs, and related needs
  • Lost wages
  • Pain and suffering

Case Summary: $1.97 Million Verdict for Surgical Malpractice

Sharon Zawatski went to the emergency department with pelvic pain from what appeared to be a large cyst. Dr. George Valenta operated, and after confirming the cyst was cancerous, proceeded to perform a total hysterectomy and removal of both ovaries and fallopian tubes.

During the surgery, the cyst ruptured, spilling its contents, although Dr. Valenta didn’t mention the cyst’s rupture in his initial operative reports. Also, documentation of the surgery failed to confirm that the left ovary and fallopian tube had been removed, even though Ms. Zawatski was assured they had been removed.

Within a year, Ms. Zawatski learned cancer had returned in the left ovary that was supposedly removed by Dr. Valenta. Sharon Zawalski later died from ovarian cancer.

Attorneys representing the estate of Sharon Zawatski and her husband filed a malpractice lawsuit against Dr. Valenta, alleging negligence in not removing her left ovary and tube.

A medical expert for the Zawatskis testified that:

“Dr. Valenta’s treatment of Decedent did not conform to the standard of care, because the “operation was inadequate, there was no staging [of the cancer], and the left tube and ovary were not removed.”

The jury found for the Zawatskis, awarding $1.97 million. The verdict was affirmed on appeal.

Compensation for Surgical Malpractice

As a victim of surgical malpractice, you have two kinds of legal options. Either you can file a complaint with the state medical board, or file a medical malpractice lawsuit.

Patients can file a complaint with the medical board without an attorney. You might consider filing a complaint on your own if you believe the surgeon committed malpractice, but you do not have much in the way of damages.

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.

If you were severely injured, or you have a wrongful death case because a family member was fatally injured by surgical malpractice, your attorney will likely help you file a complaint with the medical board in addition to filing a lawsuit.

When You Need an Attorney

Medical malpractice lawsuits should never be attempted without legal representation. Surgeons are heavily insured, and they rarely, if ever, admit they made a mistake.

Any malpractice claim you present on your own would be challenged by highly paid defense attorneys hired by the surgeon’s insurance company. They know a strong malpractice case could cost them millions of dollars if their client is found liable for your injuries.

Surgical malpractice claims can be complicated and expensive. Look for an attorney who can advance the funds needed to cover the cost of court fees, medical experts, deposition expenses, and more.

Your attorney will look for all the parties who may be liable, meaning legally responsible, for your injuries. Besides the surgeon, you may have a case against the hospital, the pathology lab, a medical device manufacturer, and more.

Most attorneys don’t charge for their initial consultation and usually represent injured clients on a contingency fee basis. In other words, the attorney’s fees aren’t paid unless your case is settled or you win a verdict in court.

You deserve fair compensation for your suffering. There’s no cost to find out how an experienced attorney can help you win your malpractice case.

Surgical Malpractice Questions & Answers

Charles R. Gueli, Esq. is a personal injury attorney with over 20 years of legal experience. He’s admitted to the NY State Bar, and been named a Super Lawyer for the NY Metro area, an exclusive honor awarded to the top five percent of attorneys. Charles has worked extensively in the areas of auto accidents,... Read More >>