Surgical Errors & Patients' Legal Rights
All surgeries involve risk. Surgical errors can happen even when the surgeon performing the procedure is experienced and knowledgeable. Before surgery, patients typically sign an informed consent indicating they are aware of the risks associated with surgeries.
Not all surgical errors constitute medical malpractice. Instead, for a surgical error to be considered malpractice, the surgeon performing the surgical procedure must fail to follow the appropriate standard of care, and the failure must be the actual and proximate cause of the harm. If you are not harmed by a procedure that goes awry, or the surgeon and his or her team maintained the appropriate standard of care and you were injured anyway, you will not be able to recover for malpractice.
What is the standard of care for surgery? In general, it is the quality of care that a reasonably prudent health care professional in the same community, who has the same training and experience, would offer under similar circumstances. Errors are mistakes that could have been prevented had the surgeon followed the standard of care. This means that if the surgeon acted as a reasonably prudent surgeon would have, and a complication arises during the surgery that could not be prevented, the patient cannot recover for the harm, no matter how severe the illness or injury that results.
Suing for Surgical Errors
There are many common surgical errors. They include cutting a nerve during the surgery, making an anesthesia error, cutting the wrong location, operating on the wrong body part, or leaving a sponge or instrument inside the body. When the surgeon fails to take a complete history of the patient, complications may arise during the surgical procedure for which the surgeon is unprepared. At times, there are errors during the procedure that are not caught and fixed. For example, the surgeon may accidentally perforate an organ and fail to repair it.
Why do surgical errors happen? Sometimes faulty communication is at issue. The surgeon may not communicate the correct dosage of medication to a nurse, or the wrong location of the body may be noted. The surgeon may not be sufficiently prepared for the surgery or may be fatigued. The surgeon may be incompetent or inexperienced or take shortcuts during the procedure. The right equipment has to be ready and sterilized, and the surgeon must review your records to know what complications could arise.
In some states, hospital emergency departments must follow a different standard of care when it comes to surgical errors. Plaintiffs in those states must show that a surgeon in the emergency department acted with gross negligence, rather than ordinary negligence, and proximately caused the injury. However, once an emergency department patient is stabilized, the physician must meet the ordinary standard of medical negligence.
In some states, such as Georgia, a plaintiff suing for a surgical error must acquire an affidavit from a surgeon in the same specialty. The affidavit must attest that the defendant breached a duty to exercise the requisite skill and care and that the breach was the proximate cause of the plaintiff's injuries. In other states, a plaintiff must submit the surgical error to a board that will determine whether the surgical error qualifies as malpractice. If a plaintiff fails to meet the prerequisites for filing a medical malpractice or surgical error lawsuit, his or her case will be dismissed.
