What to do after a surgical malpractice

Medical malpractice in surgery at hospital

Last Updated on June 27, 2021 by Legal Team

What is surgical malpractice?

Surgery can broadly be defined as a medical procedure to treat (or investigate) a disease or injury, to improve the patient’s health, etc. However, a surgical error is an avoidable error on the part of healthcare professionals during surgery. Surgeries that set out to better human health may harm the patient (or even be fatal) if appropriate care isn’t taken by the healthcare professionals involved.

Some commonly conducted surgeries include cataract operations, gall bladder removal, joint replacement, angioplasty, and bypass surgery. Approximately 129 million outpatient surgical procedures were undertaken in the US in 2018 alone.

Approximately 129 million outpatient surgical procedures were undertaken in the US in 2018 alone.

How common are medical malpractice cases?

According to estimates, around 250,000 people die every year from medical errors. Therefore, it is unsurprising that compensations in and out of court from medical malpractice lawsuits are a frequent news item.

Consider a 2018 case where a teenager won a record $135 million award against a Detroit medical hospital after a botched-up surgery to correct a sideways spine curvature. The negligent surgery left the patient with permanent bodily damage.

What constitutes surgical malpractice?

Dr. Ken Kizer former CEO, of the National Quality Forum, coined the term ‘never event’ to describe medical errors of a shocking level. These include some massively negligent cases, such as surgeries performed on the wrong body part or the wrong patient, or those which involve retention of a foreign object (e.g. medical gauze, sponge, etc.) in the patient’s body or use of contaminated drugs, devices, etc.

Aside from the instances mentioned above, other examples of surgical malpractice include unnecessary surgeries, injury to the patient during surgery, infections, and more. These mistakes occur for many reasons, including inadequate pre-planning, inadequate communication, negligence, doctor fatigue, etc.

How to legally prove surgical malpractice?

Surgeries involve a certain level of risk depending on the patient involved and the kind of surgery. As such, every unfortunate outcome arising from surgery cannot be legally viable. To prove surgical malpractice, the plaintiff will need to prove:

  1. The healthcare professionals owed the patient a duty of care
  2. The professionals breached such duty of care
  3. The patient was harmed as a result of such a breach
  4. The harm was directly caused by the breach

Please note that the duty of care will be assessed per the commonly accepted standard of care within the medical community. As such, not every adverse effect arising from a surgery can be termed malpractice so long as what was done was reasonably acceptable.

What can you do to avoid surgical malpractice?

Patients should always do basic research to find out what the surgery will entail. Make sure to bring up any concerns or doubts that you may have. Additionally, if you aren’t confident about the process, trusting your gut to get a second opinion may help mitigate damage.

Other things to keep in mind

A victim of surgical malpractice may either file a lawsuit against the persons involved or bring their case against the institution. You should consult legal advice to formulate the correct option, depending on the facts of the case and the state in question. Additionally, every state has its statutes of limitations that restrict the time limit within which a medical negligence case can be filed. Therefore, state-specific rules should be complied with to avoid the suit from being dismissed because it was brought up too late.

Medical Malpractice FAQ 3

Finding the right surgical malpractice lawyer

A key aspect in receiving compensation in any personal injury lawsuit is choosing a well-equipped and experienced attorney. Thankfully, there are many medical malpractice attorneys who have unique experience in surgical cases who can represent you. They understand the dynamics of these types of cases and will be able to walk you through each step of the process.

Surgery saves people’s lives on a daily basis. The vast majority of the time, surgeries are uneventful and are done without any mistakes. However, in case of a surgery malpractice at the hospital, make sure the situation is dealt with appropriately and you are compensated for any loss that you incur.

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