Surgical errors are avoidable mistakes that doctors make before, during, or after the surgery. These errors can result in significant injuries and even death. If you or your loved one suffered from a surgical error, you might be able to seek compensation.
When a surgeon commits an error, it does not automatically mean they are liable. To recover damages, you would need to prove the occurrence of medical negligence.
All medical providers have a duty to prevent harm to their patients. However, proving that the error is preventable is often complicated. That is why many victims of surgical mistakes prefer working with medical malpractice attorneys who know how to navigate medical malpractice cases.
Table of Contents
- What is a surgical error?
- Who is responsible for surgical errors?
- Common Causes of Surgical Errors
- Is a surgical error considered medical negligence?
- What is the medical standard of care?
- How to Prove Medical Negligence
- Evidence in a Medical Negligence Case
- Damages in a Surgical Error Case
- Recovering Damages After a Surgical Error
What is a surgical error?
A surgical error is a mistake that causes an injury or death during or after the operation. A surgeon can avoid this mistake by undergoing proper training, following protocol, and executing the procedure according to medical standards of care.
Surgical procedures are not always complex. However, they can end in complications, injury, or even death. That is why patients sign consent forms that inform them of possible surgery-related risks.
Surgical errors are not related to these common risks. They happen unexpectedly. The consequences of surgical errors differ. They vary from injuring a nerve or puncturing an organ to amputating the wrong body part or operating on the wrong patient.
You could file a medical negligence claim if you can prove that your healthcare provider committed a surgical error.
Who is responsible for surgical errors?
In most cases, the doctor may be liable for the surgical error they make.
However, you may sue a hospital if you can prove that:
- It failed to investigate the surgeon’s credentials before allowing them to work in the hospital.
- It knew about the doctor’s previous negligence in the operating room.
The hospital is not liable if the doctor who made the error is an independent contractor. You would need to file a claim with the doctor’s medical malpractice insurance or take them to court.
Common Causes of Surgical Errors
Why do surgical errors occur? While surgeons receive rigorous training and perform numerous procedures, they are still humans who can make mistakes. Common reasons for surgical errors include:
Before the procedure, the doctor does not do sufficient research about the patient’s condition. They can overlook essential parts of medical history, fail to communicate with the rest of the surgical staff, skip over the chart, and more.
Failing to study all the necessary information leads to crude errors, such as operating on the wrong body part. It can also cause the doctor to administer the wrong dose of medication.
Poor Post-Op Care
It is essential to understand that surgical errors do not just occur during the surgical procedure. After the surgery, the healthcare provider is responsible for monitoring your condition and spotting any signs of complications.
If the hospital staff misses any symptoms (post-op bleeding or infection) and does not administer timely treatment to prevent severe complications, they commit an error.
Surgeons often work long shifts, especially in understaffed hospitals. A tired surgeon can overlook information, make the wrong decision, or miss a complication.
It is up to the surgeon to monitor their condition and get sufficient rest. If they do not get enough sleep and make a mistake, they could face a medical malpractice lawsuit.
Working Under the Influence
Some surgeons use drugs or alcohol to stay alert during long shifts or to cope with work-related stress. Around 15 percent of surgeons have alcohol abuse or dependency issue. Working under the influence often leads to surgical errors.
Some surgeons are not competent enough to perform a specific procedure. They may not have sufficient experience or training to make quick decisions at the operating table.
Every year, at least 4,000 surgical errors occur in the United States. Interestingly, more happen before and after the procedure (poor communication, lousy post-op care) than during the surgery.
You can still file a surgical error lawsuit if you suffered a medical mistake that occurred before or after the surgery.
Is a surgical error considered medical negligence?
Not all surgeries that end in an injury or death do so due to medical negligence. When you sign the informed consent form, you agree to the risks your surgery comes with. While risks are generally low, they can influence the outcome of your surgery.
To seek compensation for medical negligence, you must prove that the error occurred. This is the most challenging part of the entire process. To demonstrate the error, you would need to find an expert witness who is also a surgeon with the same specialty as the doctor who committed an error.
That witness would need to testify that in the same situation, they would act differently and avoid falling below the medical standard of care. It would be up to the insurance company or the judge to determine whether the surgical error occurred.
Not all surgical errors are considered medical negligence. To be negligent, a surgeon performing the procedure must fail to follow the medical standard of care, and such failure must cause injuries.
A surgical error is not medical negligence if:
- The error did not cause any harm.
- Surgeons maintained proper medical standards of care.
In these cases, you would not be able to sue for medical malpractice and recover damages.
At-fault surgeons, healthcare clinics, hospitals, and their insurance companies will fight hard to prove the absence of negligence. They are likely to have a team of experienced legal advisors.
That is why many victims choose to hire medical malpractice attorneys to improve their chances of winning the case and obtaining fair compensation.
What is the medical standard of care?
To show that the surgeon was negligent, you must prove that their actions fell below the medical standard of care.
Medical standard of care is the degree of expertise, skill, and care that skilled surgeons with the same specialty would practice in similar circumstances. When doctors follow medical standards of care, they act according to the expectations of the medical community.
For example, community members hospitalize a person if they have a fever two days after the surgery. If the surgeon ignores the symptoms and the patient suffers severe complications, they are responsible for committing a surgical mistake.
The challenging part about proving the breach of the medical standard of care is that expert witnesses may disagree. While highly precise and complex, surgery is not an exact science.
Unless the mistake is straightforward (e.g., amputating the wrong leg), two surgeons may have different opinions about acting a certain way during the surgery.
Differences in opinions can make it hard to prove medical negligence. Eventually, it may be up to the judge (who does not have a medical background) to decide whether an error truly occurred.
How to Prove Medical Negligence
The pillar of your medical malpractice case is your ability to prove the doctor’s negligence.
To do that, you need to demonstrate four elements of negligence (also called the four Ds of medical negligence):
- Duty - You need to demonstrate that the doctor had a duty to care for you. This is usually easy to prove. If you receive treatment in a medical facility or a doctor’s office, you have a patient-doctor relationship where the duty is automatic.
- Dereliction - You have to prove that the doctor breached this duty of care when they made a mistake. This is where you have to demonstrate that they failed to follow medical standards of care.
- Direct cause - You need to show that the above-mentioned dereliction caused an injury or death. For example, a surgeon punctured an organ during the procedure, and you suffered heavy bleeding that led to additional health issues.
- Damages - You would have to show that injuries you sustained led to specific damages, such as medical expenses, pain and suffering, loss of income, and more.
Once you prove negligence and back damages with high-quality evidence, you have a chance to receive compensation. However, the at-fault party will likely try finding loopholes in your case to avoid or minimize the payout.
If you work with an attorney, they can help you avoid mistakes that could reduce your settlement or hurt your case.
Evidence in a Medical Negligence Case
You would need to collect high-quality evidence to prove negligence and build a strong case.
The typical evidence in a medical malpractice case includes:
- Medical records - These are the most critical evidence in a surgical error case. You need to request all of these records as soon as possible. An attorney can help you draft the request and explain which records can benefit your case.
- Names and dates - Record all names of medical care professionals you interact with during your stay in the hospital or visit to the clinic. Do not forget that all interactions before and after the procedure also matter.
- Medical bills - All medical bills, prescriptions, and doctor’s reports can serve as evidence to prove how much damage you are entitled to.
- Journal - Keep a journal to demonstrate the extent of your injuries and the pain and suffering accompanying them. Journals are excellent evidence that backs the reduction of your quality of life.
- Wage reports - W-2 forms can help prove how much income you lose due to sustained injuries.
- Photos and videos - Photos and videos of your visible injuries back your request for high compensation.
The key player in your medical malpractice case is the expert witness who can prove that the at-fault doctor’s actions fell below the medical standards of care. Finding such a witness is not always easy.
Since different surgeons have different opinions, you could end up hurting your case instead of strengthening it. Consider contacting a local medical malpractice attorney to get assistance with finding the right expert witness.
Damages in a Surgical Error Case
If you can prove the doctor’s negligence, you can try to collect damages.
The amount of these damages depends on several factors, including:
- How much evidence you can provide - You need to provide evidence that backs all your past and present expenses. To demonstrate future expenses, you may need to hire an expert witness.
- How extensive your injuries are - The more injuries you sustain, the more damages you can claim. If you face a permanent disability or an injury that requires long-term treatment, you can get a higher settlement.
- If you can prove pain and suffering - Pain and suffering may be harder to prove than medical expenses. However, these damages are usually much higher than the rest of your compensation.
Some states set a cap on the amount of damages you can receive in a medical malpractice lawsuit.
For example, in Florida, the cap for non-economic damages is $500,000 (it goes up to $1 million if the surgical error causes death or a vegetative state). New Jersey caps punitive damages while Pennsylvania does not set any limits on medical malpractice damages.
The common damages in a surgical error case include:
- Medical expenses
- Lost wages
- Loss of income
- Pain and suffering
- Loss of consortium
- Loss of quality of life
If your loved one died as a result of a surgical mistake, you could claim wrongful death damages, including pre-death treatment, burial expenses, funeral costs, loss of financial support, loss of emotional support, loss of inheritance, and more.
Recovering Damages After a Surgical Error
You can seek compensation if you sustained injuries or a loved one died because of a surgical error. Do not wait until full recovery to start legal action. The faster you file the claim, the more chances you have to collect damages.
An experienced medical malpractice attorney can help you build a strong case and improve your chances of winning it. Consider contacting a lawyer for a consultation as soon as you can.