Medical malpractice occurs when a medical caregiver provides care that is below the accepted standard. For a surgeon and those other medical professionals involved in surgery, the consequences of not providing an adequate standard of care can be very serious. Surgical errors are often preventable and are often easily proven to be negligent.
Errors can occur for a variety of reasons, such as incompetence or fatigue. There also may be any number of types of surgical errors, from not using sanitary tools with resulting infection to operating on the wrong patient. If you experienced a surgical error and are now suffering because of it, you may have a true case of medical malpractice. Let a lawyer with experience in this type of case guide you through the process of seeking compensation.
What is Surgical Malpractice?
Surgical malpractice occurs when an error related to a surgical procedure is found to have been negligent. Doctors, surgeons, anesthetists, nurses, and other professionals involved in surgeries are expected to provide a basic standard of care before, during, and after a surgery. When anyone in this team makes an error, and a patient suffers significant harm as a result, it may be considered medical malpractice.
Types of Surgical Error
There are many ways in which a surgery can go wrong, from minor issues to major, life-changing, or even fatal mistakes. A surgical error is not necessarily medical malpractice or if it is, it is not always the surgeon who is liable. In many cases, though, it is simple enough to prove that one of these errors that has led to harm and damages to the patient is a case of malpractice because of care that is below the accepted standard:
- Performing surgery at the wrong site on the body, such as the right instead of left lung
- Operating on the wrong patient or performing a procedure that a patient does not need
- Damaging organs or tissues during surgery
- Leaving equipment inside the patient’s body
- Causing temporary or permanent nerve damage
- Errors in the administration of anesthesia
- An incorrect incision.
- Using unsanitary tools that cause infection.
- Use of a medical device that is faulty or causes complications
Studies have also found that there are types of surgeons who face the most malpractice claims, whether or not those claims are successful at proving negligence. The highest rates of malpractice suits were for neurosurgeons, closely followed by cardiothoracic surgeons, general surgeons, colorectal surgeons, and obstetric and gynecologic surgeons. The lowest number of claims were against those performing otolaryngology, ophthalmology, and breast surgeries.
When are Surgical Errors Malpractice?
For any type of medical malpractice to be proven, a legal team must establish that the doctor or other healthcare professional had a duty to care for the patient. They must then prove that the duty of care was breached, that this resulted in harm, and that the harm resulted in significant damages to the patient. With surgical errors it is usually easy to prove these factors. A mistake made before or during surgery is often simple to identify and recognize as being a breach in care.
There are several reasons why an error may occur and be considered negligent. For instance, a surgeon could be considered incompetent to perform a particular procedure. There may be evidence of inadequate planning before a procedure, failure to communicate between surgical team members or with the patient, fatigue in the surgeon, or even drug or alcohol use in the surgeon.
Surgical Malpractice and Residents
Surgery is complicated and requires a lot of education and training to be able to do it successfully. Surgical residents are still in the training process, and a recent study found that these less experienced surgeons are most vulnerable to malpractice cases. Half of the cases analyzed that involved a resident or intern were settled in favor of the patient. Most of the claims involved patients who were permanently disabled or killed.
The study found that the errors that caused harm to the patients in these cases were often related to decision making on the part of the surgical resident. For instance, in several cases the resident made an error after making a decision about care without actually evaluating the patient. Inadequate supervision for surgical residents was also cited as a reason mistakes were made. These facts highlight how important it is for patients to be aware of who is performing their surgery, and if it is a resident, how much supervision will be involved.
Consequences of Surgical Malpractice
Even minor errors made before or during a surgery can have serious and lasting consequences for the patient. For instance, just one tool that was not properly sanitized could cause a severe systemic infection that may even result in death. There are many potential consequences of surgical mistakes, ranging from minor pain to disability and death.
Depending on the patient and the error made, possible consequences of surgical errors include pain and suffering, disability, mental anguish, loss of consortium in relationships, inability to work and lost wages, additional medical conditions, additional treatments and surgeries, and extensive medical bills that the patient would not otherwise have had.
Examples of Surgical Malpractice
There are all too many examples of surgical errors that result in malpractice claims or even in some cases wrongful death cases. One example involves a famous victim, actor Bill Paxton. His family is suing the hospital and surgeon they believe are responsible for his death after heart surgery. He had surgery to repair an aneurysm, but the family claims that the surgeon was incompetent in terms of such a complicated procedure and also that they were not given all the information needed to consent to it. Paxton died from complications after the surgery.
Another example occurred in 2010 when a woman underwent a procedure to remove a benign cyst from one of her ovaries. Months later she suffered such a severe infection that she ultimately had to have all of her limbs amputated below the knees and the elbows. The cause of the infection was determined to be a surgical error. Her surgeon cut through her bowels during the procedure, which caused the infection in her abdomen that spread. After a jury trial the woman was awarded $109 million. She has to live in a nursing home now with round-the-clock care.
Surgical errors can be devastating, as these two examples show. It is important for patients to be proactive in their care and to fight for justice when someone makes a preventable mistake. Medical malpractice for a surgical mistake can be often be proven, but it is important to get the advice of an experienced lawyer before starting any case.