What to do after a surgical malpractice

If you or someone you love came out of surgery worse than expected, or learned that something went wrong in the operating room, you probably have more questions than answers. If you’re not sure whether it was a mistake or just bad luck, that’s a normal place to start.

Here’s the short answer. A bad result isn’t always a surgical error, because surgery carries risks even when it’s done right. It’s malpractice when the care fell below what a reasonably careful provider in the same field would have done, and that caused the harm (M Civ JI 30.01, 30.04). A few errors, such as operating on the wrong body part or leaving a sponge inside, should never happen. Either way, take care of your health first, get your complete records, write down what happened, and don’t sign a release before you get advice.

The hard part is often the process that follows: malpractice claims have deadlines, and Michigan requires a written notice and a 182-day wait before most malpractice lawsuits (MCL 600.2912b). Michigan’s rules, current as of September 28, 2026, are in the boxes marked “In Michigan.”

Wondering whether what happened in surgery was a mistake? Get a free case review. Four quick questions, no cost, no obligation.

Was it a surgical error or a known risk?

Every operation carries some risk. Michigan jurors can be told: “There are risks inherent in medical treatment that are not within a doctor’s control. A doctor is not liable merely because of an adverse result.” A doctor is liable, though, if negligence caused the bad result (M Civ JI 30.04). To prove malpractice, you generally have to show three things (M Civ JI 30.03):

1. The care fell below the standard of care: what a provider “of ordinary learning, judgment and skill” in the same specialty would or wouldn’t have done in the same or similar circumstances (M Civ JI 30.01; MCL 600.2912a(1)(b)).
2. That caused your injury. In Michigan, the injury must “more probably than not” have been caused by the negligence (MCL 600.2912a(2)). See how causation is proven.
3. You were harmed, for example with another operation, lost income or a lasting injury.

Sometimes the question isn’t the complication itself but whether it was recognized and treated in time. The Patient Safety Network of the federal Agency for Healthcare Research and Quality (AHRQ PSNet) calls harm “ameliorable” when it couldn’t have been prevented but could have been made substantially less severe with different care.

Timing was part of the dispute in a 2018 Wayne County trial over a 10-year-old girl’s spinal surgery. Her lawyer said the way the rods and screws were placed compressed her spinal cord, and that they weren’t removed until 10 days later; the hospital’s lawyers blamed a blood clot that nothing could have prevented. The jury awarded $135 million against the hospital and the surgeon (FOX 2 Detroit; Associated Press, July 2018). A verdict isn’t necessarily what gets paid: in Michigan, the judge must cut noneconomic damages, such as pain and suffering, to the cap described below (MCL 600.6304(5)), a clearly excessive verdict can lead to a new trial or a lower amount (MCR 2.611(A)(1)(d), (E)), and the reports don’t say what was paid. Past results don’t guarantee a similar outcome.

What if you weren’t told about a risk?

Before surgery, you’re generally asked for informed consent: your agreement, given knowing the relevant facts, such as the risks and alternatives (Legal Information Institute). A consent form doesn’t excuse malpractice: in Michigan, a release signed before treatment that tries to excuse a provider’s malpractice is “invalid and unenforceable” (Cudnik v William Beaumont Hospital, 1994). Courts can also hold a doctor liable for clearly exceeding a patient’s consent, as Minnesota’s Supreme Court did when a doctor with consent to operate on one ear operated on the other (Legal Information Institute).

Which surgical errors should never happen?

Some mistakes are called never events. Dr. Ken Kizer, a former CEO of the National Quality Forum (NQF), introduced the term in 2001 for shocking errors, such as wrong-site surgery, that should never occur. It has come to mean events that are unambiguous, serious and usually preventable. The NQF’s list of 29 “serious reportable events” starts with surgical events, including these (AHRQ PSNet):

• surgery or another invasive procedure on the wrong site, such as the wrong side of the body or the wrong level of the spine
• surgery on the wrong patient
• the wrong procedure
• an object unintentionally left inside after surgery, such as a sponge, needle or instrument

The list also covers death or serious injury in a health care setting from contaminated drugs or devices, an air embolism (air in a blood vessel), a medication error, a burn or a fall, and a stage 3 or 4 pressure ulcer (bedsore) that develops after admission (AHRQ PSNet). For mistakes with drugs, see how medication error claims work.

Never events are rare, but they happen. A 2015 review of 138 studies put wrong-site surgery at about 1 in 100,000 procedures and retained surgical items at about 1 in 10,000, while cautioning that the precision is uncertain (JAMA Surgery, 2015). Safeguards include marking the surgical site, a “time out” in which the team reviews the procedure before it starts, and counting sponges, needles and instruments. AHRQ PSNet described site marking and the time out in 2024 as part of the Universal Protocol of the Joint Commission, which accredits hospitals.

Does a never event prove your case?

Not on its own. A never event is usually preventable by definition, but you still have to prove it caused your injury and what that cost you (M Civ JI 30.03), and meet your state’s deadlines and other requirements. And not every object left in the body is an error: a doctor may decide that removing a broken piece of a device is riskier than leaving it, and the hospital should then tell the patient it’s there (AHRQ PSNet).

Surgical claims can also involve errors that aren’t on the list, such as an injury to a nearby organ or missed signs of bleeding or infection afterward, judged case by case against the standard of care (M Civ JI 30.01). A complication missed after surgery can also be a missed or delayed diagnosis. For a cesarean delivery, see C-section errors.

What should you do after a surgical error?

1. Get the care you need, and a second opinion

Your health comes first. The CDC lists redness and pain around the surgery site, cloudy fluid draining from the wound, and fever as signs of a surgical site infection, and says to call your health care provider immediately if you have them (CDC). In an emergency, call 911. If you’ve lost trust in the surgeon, ask another surgeon for a second opinion and follow-up care.

2. Request your complete records

Ask every hospital, surgery center and doctor involved, in writing, for your complete records, and name the parts that matter most:

• the operative report, the surgeon’s report of the operation
• the anesthesia record
• nursing notes, including from the operating room and recovery
• the implant record, if you have an implant, including the device’s unique device identifier (UDI), a code from its label that anyone can look up in the FDA’s AccessGUDID database (FDA)
• your bills

Under the federal HIPAA Privacy Rule, you generally have a right to see and get a copy of the medical and billing records a provider keeps about you. The provider must act within 30 days, or, once, within 30 more days if it tells you in writing why, and can charge only a reasonable, cost-based fee (45 CFR 164.501, 164.524).

3. Write down what happened

Start a timeline while your memory is fresh: the date of surgery, who was involved, what you were told before and after, when symptoms started and whom you told, and every follow-up visit and procedure. Keep bills, records of missed work and dated photos of the wound. If a doctor explained what went wrong, write down their words.

4. Don’t sign a release or waiver before you get advice

A hospital may apologize and offer to waive bills or pay you. The Leapfrog Group recommends that after a never event, hospitals disclose the error, apologize, report it and waive all costs related to it (AHRQ PSNet). Before you sign anything or accept a payment tied to a release, get advice: Michigan’s Court of Appeals has noted that a release signed as part of a settlement can be valid and enforceable, unlike one signed before treatment (Cudnik v William Beaumont Hospital, 1994).

5. Keep anything that was removed

If you’re given a device or object removed from your body, such as a failed implant, keep it as it is in a labeled container, note who gave it to you and when, and don’t hand it to anyone, including the manufacturer, before you get advice. It may be important evidence.

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Who can be held responsible for a surgical error?

Surgeons, other providers and the hospital can all be sued in the same case. That can include:

• the surgeon, and other surgeons or residents who took part
• the anesthesia team, such as an anesthesiologist or nurse anesthetist
• nurses and other operating room staff, such as those who count sponges and instruments (AHRQ PSNet)
• the hospital or surgery center. An employer is generally responsible for an employee’s wrongful acts on the job, but not for an independent contractor’s (Legal Information Institute), and a surgeon who operates at a hospital isn’t always its employee.
• the United States, if a VA health care employee treated you. That claim must first be presented to the VA in writing within two years, and once the VA mails a final denial, you generally have six months to sue (38 U.S.C. § 7316(a); 28 U.S.C. § 2401(b)).

If an implant or instrument was itself defective, a claim against its maker is a product liability claim, with its own rules and deadlines. See how product liability claims work.

What are Michigan’s rules for a surgical malpractice claim?

Every state sets a deadline for malpractice lawsuits, and some add steps first; see injury deadlines in every state. Here are Michigan’s rules, in brief. For each step in order, see Michigan medical malpractice law.

The notice of intent and the 182-day wait

The affidavit of merit

Who can serve as the expert

How long you have

The cap on damages

What if a family member died after surgery?

When a surgical error causes a death, the family may have a wrongful death claim; see how wrongful death claims work. If the death was unexpected, Michigan requires the county medical examiner to investigate its cause and manner (MCL 52.202(1)(b)), so ask whether the medical examiner was notified and whether an autopsy will be done. The estate’s personal representative (the person appointed to handle the estate), or heirs at law including a spouse, can later request the medical records and any autopsy report (MCL 333.26263(a)(ii), (iii); 333.26265).

What to do next

1. Take care of your health first, and get a second opinion if you’ve lost trust in the surgeon.
2. Request your complete records from every provider involved, and keep a written timeline.
3. Find your deadline, and start early. In Michigan, it’s generally two years from the surgery, and the notice of intent, which usually takes your records and an expert’s review to prepare, must go out before it passes. See every Michigan injury deadline in one place.
4. Get a case review before you sign anything. Get a free case review, or compare Michigan injury lawyers. For a quick self-check first, see what to do if you think you have a malpractice case.
5. Get the fee agreement in writing. In Michigan, a contingency fee (a share of what’s recovered) in an injury case can’t be more than one-third of the recovery after case costs, and the agreement must be in writing (MCR 8.121). See how injury lawyers get paid.

What waiting can cost

• The claim itself. In Michigan, a malpractice suit filed too late “is barred” (MCL 600.5838a(2)).
• The pause. A notice of intent stops the clock only if it’s sent before the deadline passes (MCL 600.5856(c)).
• Evidence. A removed device can be thrown away, memories fade, and after a death, an autopsy has to be arranged quickly.
• Time. A records request can take up to 60 days under HIPAA, an expert needs time to review the records, and the notice period is usually 182 days.

What a good outcome looks like

You’re getting the care you need from doctors you trust. Your records are in hand, and a qualified expert has told you whether the surgery, or the care around it, fell below the standard. If it did, every provider got a proper notice in time, the lawsuit was filed with a sound affidavit of merit before the deadline, and those responsible pay for your care, lost income and what you went through, within Michigan’s limits. If it didn’t, you have a clear answer and can focus on healing. From wondering whether it was a mistake to knowing what happened, what your records show and how long you have to act.

For other kinds of medical mistakes, see the complete medical malpractice guide or browse all medical malpractice guides.

Updated September 28, 2026

This guide is general information, not legal advice, and laws change. For advice about your situation, talk to a lawyer licensed in your state. Reading this page or contacting us does not create an attorney-client relationship.