When Is A Surgical Error Considered Medical Malpractice?

Surgical Procedure In Process

We all know that surgery can be scary. You have little control over when and where the procedure will take place. You completely give up control when you accept general anesthesia.

You may feel that you have limited control over whether to undergo the procedure at all. Your specialist and your surgeon make the recommendation and you fervently hope it’s the right one.

Surgical procedures usually go smoothly. You wake up sore and feel a little cranky afterward. A few months later you barely remember the experience.

Unfortunately, surgery does carry risk. Just as the stock market can deliver bitter losses along with rewards, surgery can leave you worse off than you were before. In fact, you’ll most likely sign a form called “informed consent,” to acknowledge that the risks were explained to you, and that you understood and accepted them.

In some cases, however, a medical error goes beyond the expected level of risk. In fact, medical regulators have designated some particularly bad outcomes as “never events” – mistakes that should never occur in an accredited hospital setting.

When you experience any serious mistake, along with a huge cost to your body, financial security and even potentially your life, there may be grounds for a medical malpractice case. A medical malpractice lawyer will need to evaluate your individual circumstances, but here are some examples of adverse surgical outcomes that become malpractice cases.

Failing to Treat Post-surgical Complications

This mistake is the most common form of surgical error. Your surgical team should be alert for hemorrhage, infection, or adverse reactions to anesthesia. Without prompt treatment, these complications can lead to a longer hospital stay, invasive treatment, or even death.

Unnecessary Surgery

Your surgeon decides to operate based on a single x-ray or pathology report. She doesn’t seek further lab reports, although any report can be misinterpreted. Alternatively, she may review a slide carefully, not realizing the lab has labeled the slide incorrectly. Either way, you’re treated for a condition you never had.

Organ or Nerve Damage

It’s not uncommon for a scalpel to slip, injuring an otherwise healthy body part. For example, a surgeon might inadvertently cut the bile duct during a routine gall bladder operation.

Often nerves will be encountered very close to the operating area. When the surgeon simply touches a nerve, causing temporary sensitivity, there’s little likelihood of a malpractice case. But a severed or damaged nerve can result in a lifetime loss of function or mobility.

Operating on the Wrong Body Part

Most hospitals today go to elaborate lengths to avoid amputating the wrong limb or extracting a healthy organ. Many have developed pre-op checklists and rituals. Still, mistakes can occur, with devastating consequences for the patient.

Operating on the Wrong Patient

The surgical prep team can slip up and deliver the wrong patient to the surgeon. The mistake seems unlikely, but could occur if the patient has been anesthetized and the surgeon doesn’t look carefully.

Leaving Sponges or Surgical Equipment Inside the Patient

Most hospitals today insist on accounting for every sponge and instrument before and after surgery. They may even x-ray a patient to double-check for missing items. However, lawyers regularly see clients who report complications when the team counts incorrectly or fails to follow this protocol.

The Making of a Malpractice Case

The above examples illustrate just a few errors that could make a case for significant damages.

As with all malpractice cases, identifying a mistake is only the first step.
Your medical malpractice lawyer will need to know how your life was changed after surgery. Were you left unable to walk, talk, or eat? Did you require additional hospitalization for a long period of time? Were you forced to undergo additional surgery?

Once damages have been established, your lawyer will investigate the cause of the mistake. Was the surgeon negligent or was this incident a common outcome of this type of surgery? Did the surgeon follow standard procedures? Did he take shortcuts? Did she prepare and plan adequately?

You may be asked to see another surgeon, who will evaluate the first surgeon’s work. Your malpractice lawyer will arrange the details and review this surgeon’s report, before concluding whether you have a reasonable chance of claiming damages.

Your Next Steps

If you or someone you care about was gravely injured during surgery and you suspect negligence or malpractice, contact an experienced medical malpractice attorney. You’ll get realistic advice about your opportunities to recover financial compensation. If the incident took place in Pennsylvania, we invite you to contact our law firm for a free case evaluation. We have been dedicated to helping victims of medical malpractice in Pennsylvania for over 40 years.

All articles in this blog are the collaborative effort of attorneys Jerry Meyers, Brendan Lupetin, and Gregory Unatin.

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