How does medical malpractice law shield a surgical error?

by | Jul 19, 2021 | Medical Malpractice, Surgical Errors | 0 comments

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Overview

A surgical procedure, let it be a minor one or a major one is always a daunting journey for us. Though surgeries have become less complicated with medical advancements, anesthesia, cuts, bleeds, and pain still leave us in stress.

Adding up to the anxiety,

What if the surgery encounters an error and ends up in another complication?

How does medical malpractice law safeguard a surgical error victim?

Are surgical errors always medical malpractice?

In this blog, let us come up with the answers to all these queries and unearth much more about surgery errors.

Surgery ranks as the second most common cause for medical malpractice claims against doctors in the US. In layman’s terms, a surgical error is an avoidable mistake committed by the physician during the procedure which causes damage to the patient.

Surgical errors are termed as ‘never events’ as these mistakes should never happen if the medical professionals are diligent and attentive.

What causes a surgical error?

The main cause for a surgical error is the incompetence of the physician and the failure to analyze the medical condition of the patient. Lack of a detailed discussion with the patient regarding the previous medical history could end up in complications during the surgery. In most of surgical error cases, lack of proper preoperative preparations is found to be the root cause for the error. There have been instances, where the surgeon was under the influence of drugs or alcohol leading to major surgical mistakes.

Types of Surgical Errors

Studies report that around 4000 surgical errors are reported each year in the United States. The following are the common surgical errors that lead to litigations.

  1. Surgery on the wrong Site

Negligence or lack of communication often results in the incorrect marking of the surgical site. This leads to surgery in the wrong site in the patient’s body.

  1. Wrongful amputation

Wrongful amputation refers to the amputation of the wrong body part. Wrongful amputation is one of the common surgical errors that is presented for medical malpractice lawsuits.

  1. Causing damage to the healthy organs during surgery

Incompetence and negligence often lead to damage of the healthy organs of the patient. A tiny slip of the scalpel may puncture the lungs or the kidney which may turn out to be lethal. Perforation of the bowel during a colonoscopy may result in sepsis thereby damaging the internal organs such as the lungs, kidneys, or liver.

  1. Anesthesia errors

Incorrect dosage or administration of anesthesia may land up in life-threatening complications and health risks in the patient. A high dosage of anesthesia causes oxygen deprivation which may result in brain damage. 

  1. Surgical instruments left in the patient’s body after the procedure

Leaving surgical instruments or materials inside the surgical site is a common surgical error reported in the US. Surgical scissors, cotton, scalpels, clamps, sponges, and pads may be negligently left inside the patient’s body.

  1. Severe infections after the procedure

Due to improper sterilization of the surgical tools and lack of proper care by the surgery team may end up in devastating infections and sepsis in the patient.

  1. Damage to the nerves during the surgery

Unsteady operating hands can cause unintended nerve damage. This often results in pain, numbness or tingling, impaired motor function and sensation, paralysis, seizures, paralysis, and stroke in the patient. 

  1. Internal bleeding after the surgery

Incorrect incisions may cause lacerations causing internal bleeding after the surgery. When unidentified, this may cause serious health issues in the patient.

  1. Failure to prevent complications during surgery

There are certain instances where the surgical procedure may lead to complications in the patient. The surgeon should be aware of the possible complications that may and should be able to prevent it. Failing to address such complications can cause adverse life-altering consequences in the patient. 

Aftereffects of Surgical Errors

It is estimated that one out of three cases of surgical errors results in permanent injury. However, the severity of these consequences would be subject to the age and overall health condition of the individual and the type of surgery error encountered. The below-mentioned are the most commonly reported outcomes of a surgical error.

  • Health complications
  • Need for repeated follow-ups
  • Need for corrective surgery
  • Need to take medications
  • The requirement to take off from work
  • Requirement for rehabilitation therapy sessions
  • Stroke
  • Permanent disability
  • Death

Medical Malpractice Law for Surgery Errors

The claimant in a surgical error may sue the surgeon, anesthesiologist, healthcare provider, hospital or ambulatory surgical center depending upon the specific circumstance of the case.

Are all surgery errors considered med mal by the law?

Medical malpractice law considers a surgical error as malpractice depending upon the degree of negligence of the physician involved. The law dissects the case and finds out how the physician failed to follow the standard of care to be offered to the patient. To be considered as medical malpractice, it should be proved that the error could have been avoided by the surgeon. The surgical error should have triggered considerable damage to the victim.

If all the above-mentioned factors are proved with supporting evidence, medical malpractice law would shade the claimant and help him bag a deserving compensation. In most of the states, a surgical error case should be submitted to a board that will determine if the case qualifies as malpractice. The case may be dismissed if it fails to meet the prerequisites for filing a surgical error lawsuit.

Some states demand acquiring an affidavit from a surgeon in the same specialty. The affidavit must demonstrate that the defendant breached a duty which is the cause for the plaintiff’s injuries.

The standard of medical care established by a skilled physician in a similar medical procedure would be taken into consideration. This would help to analyze how the physician in the case failed to meet the standard of care.

The herculean task in a surgical error claim would be to identify if the damage is a normal complication of the surgery and if it was discussed in detail with the patient. Complication arising out of surgery is a medical event whereas a surgical error is purely the outcome of negligence.

It is to be noted that the informed consent obtained from the patient prior to the surgery would not break a claim. Informed consent is obtained to establish that the patient was aware of the associated risks of the procedure. If the claimant is able to prove that the damages he sustain is a surgical error and not a surgery complication, informed consent would not hinder the lawsuit.

It is very critical to hire an experienced medical malpractice attorney to battle the claim against the giant healthcare facilities and their insurance providers. The value of the case is decided by the damages caused to the claimant by the negligence. Current and future medical expenses, medication bills, rehabilitation costs, loss of wages, loss of consortium, pain, and suffering, etc. are the common damages covered in a surgical error claim.

In cases where a surgery error causes the death of the victim, wrongful death lawsuits could be claimed by his legal dependents.

Being victimized in a surgery error, the swift action of the individual should be seeking the legal advice of a medical malpractice attorney. The healthcare provider may try to settle the issue with a paltry sum. Going ahead with such settlements would lose the chance of a legal claim.

Medical malpractice lawyers would help to file the lawsuit within the statute of limitation demanded by the state. They would be well acquainted with the bottom lines of medical malpractice law of the state. This would help the claimant to have a well-built medical malpractice lawsuit against the physician or the health care provider.

Networking with a credentialed medical record review company, medical malpractice attorneys would draw out the evidence for surgical error through the medical record review process. Professional medical record reviewers would scrutinize the medical charts of the claimant and study every minute detail regarding the surgical procedure. A well-prepared medical chronology report would be undoubtedly fruitful to the claiming process. Circumstances like missing medical charts or medical record tampering could easily be discovered in medical record review and analysis.

Final Thoughts

A surgical procedure is always prone to inherent chances of risks. The risks of common surgical errors could be prevented by the medical professionals by practicing due diligence. However, if you find that the error was a preventable one, never delay to act. Seek legal advice from an expert medical malpractice lawyer. A medical malpractice lawsuit for surgical error would be tough but never impossible.

Facing the aftermaths of a surgical error and going through emotional trauma is never compensable. However, medical malpractice law helps the victim to meet the handle the whopping medical expenses and the financial burden endured by the individual.

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