The Ultimate Guide to Surgical Medical Malpractice

Who is Liable for a Surgical Error

Mistakes in the medical field are not unheard of. In fact, they happen quite a lot. Many patients die and get severely injured when a mistake is done by a medical professional, especially while they are under surgery.  Medical professionals are human and mistakes can happen to anyone within the medical field. Even though mistakes can happen, they should not be happening in the medical field because it often involves life and death situations.

Doctors perform thousands of unnecessary surgeries (Watch Video)

Trying to determine who is at fault for a surgical error can be complex because there are many people involved when a surgery is being performed, but it is important to find out who is the responsible party in order to bring on a lawsuit. For the most part, when a surgical mistake happens either the surgeon, the operating nurse, the registered nurse, or the anesthesiologist are liable, but other times, a surgical error can also fall on the hospital. Trying to figure out who is liable can be difficult without a medical malpractice lawyer. With a medical malpractice lawyer, they perform the appropriate investigations and hiring of medical experts in order to determine who is at fault.

A surgical mistake can happen in various stages of the surgery like pre-surgery, current surgery, and post-surgery. When a patient has suffered a surgical error, they need to see when the error took place in order file the lawsuit against the appropriate individual or facility. Both the surgical team, the surgeon, and the hospital owed a duty of care to a patient that is going to have a surgery.

Searching For Liable Party After Surgical Error

Here are some elements that need to be kept in mind when trying to find the guilty party. There are many aspects associated with a surgical mistake. Some of those include:

• Did the surgeon have a contract with the hospital? In this case, if the surgeon had a contract with the hospital, it usually limits the hospital’s liability when the surgeon commits an error. The surgeon is able to use the hospital and all of its resources, but the hospital would not be liable for any resulting damage caused by the surgeon. The only way a victim would be able to hold a hospital accountable is if they are able to show that the surgeon was not just a contract worker, but an employee of the hospital.
• Was a faulty equipment the reason for the mistake? If the surgical error was caused by a faulty equipment, the hospital would take the blame. The hospitals have to ensure that their equipment is well-kept and maintained. Often times, the hospital will try to shift the blame on the surgeon by stating that the equipment was not used properly.
• Was it an emergency surgery? Emergency surgeries are usually done to save the life of an individual. Typically, a person cannot decide who they want to operate on them because they might not be in the state to decide. When an error is committed during an emergency setting, the hospital will be liable.

I was a Victim of a Surgical Error

Surgical errors are tricky because some are obvious, while others do not manifest until some time has passed. How can one know whether the injury that is manifesting itself is coming from a mistake that occurred during surgery? Sometimes it may be difficult to see that an error happened, but other times it is obvious like a wrongful amputation. These mistakes are visible to the human eye, while there are some mistakes like leaving a foreign object inside a patient after surgery which will only show signs once the patient starts experiencing pain or contracts an infection.

Surgical errors occur all around the United States, more than we would want them to. If there is a suspicion that the patient was a victim of a surgical error, they need to investigate their suspicions. They say that an individuals first intuition is usually correct. A plaintiff can take a number of steps to investigate whether their current injury was caused by a negligence while they were under the knife. Some of those methods include:

• Collecting medical history before the surgery and after the surgery occurred
• Having a physician evaluate the victims overall health
• Gathering any witness statement of the medical professionals that were inside the operating room

These are just some methods that can be done to try and decipher whether the current injury or pain that the patient is experiencing was caused by a surgical mistake. If the surgical error is immediately obvious, the victim needs to seek a lawyer right away that will be able to file a lawsuit against the responsible individual who committed the negligent mistake.

Who Can Be Negligent During a Surgery?

There is a misconception about surgical errors that can only be committed by the surgeon, but a number of people can commit an error while a patient is under the knife. Some of those individuals include:

• The surgeon
• The registered nurse
• The Surgical Technician
• The Physician Assistant
• Anesthesiologist, and
• Operating room nurse

Negligent and Careless Acts Leading to Surgical Errors

The idea of having to undergo a surgery can be terrifying. Many people become nervous and anxious when they learn that they have to go through a surgery. While a process of a surgery has its risks, additional harm can be caused when the surgeon and his or her team perform reckless, careless, and negligent acts. A specific standard of care must be exercised by every medical professional while they are performing their job duties on their patients. One little mistake, no matter how small it is, can cause the death of a patient under the knife. Not only does the surgical team need to adequately perform their job during surgery, the must take the necessary steps before and after surgery has taken place

What Effects Can Surgical Errors Have

A surgical mistake of any kind can have devastating consequences. Some surgical errors can cause minor injuries, while other surgical mistakes can be grave in nature, and even possibly causing a patient’s death. While the main reason for a surgical error is negligence, various external factors can attribute to an error while under the knife. When a mistake happens, the patient who is undergoing the surgery can become extensively harmed and can even die as a result of that mistake.

Performing a surgery is not a game, especially nothing like the game “Operation”. A surgeon must be fully trained and qualified to perform a surgery. A surgeon must follow various steps before operating, during the operation, and after surgery has concluded. A mistake pre-operation can be as deadly as a mistake during operation, and even a mistake after the surgery has been performed. The team of personal injury attorneys know how important every stage of an operation is, and how a mistake in any of the stages can be lethal for a patient.

The important thing to remember when a patient is going to undergo a surgery is that surgeries come with many risks on their own, but a surgeon can attribute more danger to a surgery when they commit a mistake. The best thing to do is research information about the procedure that they are going to undergo, the surgeon that will be operating on them, and most importantly get all the questions and concerns that they have answered by the medical professional.

Effects of a Surgical Mistake on the Patient and Their Family

A surgical mistake directly affects the patient, but their family is also affected by that mistake. While both the victim and family are suffering, the surgeon is left to commit even further harm if not punished for his or her actions. Here are some consequences of a mistake under the knife:

• Disability
• Death
• Brain damage
• Nerve damage
• Coma
• Vegetative state
• Infections
• Pain
• Contracting an STD
• Amputation
• Permanent scarring
• Loss of desire to live
• Loss of consortium
• Suffering
• Emotional Trauma
• Need for psychological therapy
• Medical bills
• The inability to work
• Paralysis, and
• More

The above is just a list of some possible outcomes that can come from a surgical error. While one can hope that no one has to go through a surgical mistake, they are the most common type of medical malpractice that occurs within the medical world.

Distractions During a Surgery

Would it come to a surprise that distractions during an operation are not uncommon? How could a surgical team be listening to music while they are performing open heart surgery? Or how can a nurse be answering her cell phone while she is assisting in the operation? Disgracefully, distractions are present in operating rooms and continue to be. Concentration is being lost with all the distractions that can occur while a patient is under the knife, especially patient’s that are unconscious as to what is happening.

When a patient is conscious during a procedure, the surgeon and their team are most likely to be less distracted because they have someone who is watching them, but distraction is still present regardless. Imagine if a patient is fully unconscious and unaware of what is going on. What are the medical professionals talking about? Are they listening to music? Are their minds somewhere else? It is possible. Distractions are a major cause of many accidents, including vehicle crashes.

Distractions within an operating room can not only cause a loss of concentration, but it can also limit the capability of the surgeon’s team to understand what the surgeon is communicating to them. Effective communication is required during a surgery, which is something distractions can affect.

Distractions That Can Take Place in an Operating Room
Why is a medical professional dealing with all sorts of distractions when they should really be concentrating on the patient in front of them? Regretfully, some surgeons may believe that music actually helps them during the surgery process, but the truth is, when music is playing, no one is focused 100% of their capability. External and even internal noises affect the quality of work of any professional. Here are some distractions that can be experienced in an operating room:

• Listening to music
• The use of their cell phones
• Talking about things unrelated to the surgery
• Closing and opening of the operating room door
• Surround machinery noise
• Medical professional entering the room to ask surgeon a question
• Thinking about personal problems

Distractions Affecting Patients Under Surgery
With all the mistakes that can be committed by a medical professional and the causes for those mistakes, a patient now has to worry about distractions as well. Does a patient need to undergo so much stress when having a surgery is stressful enough? Definitely not. Attorneys are shocked at how many distractions can lead to the injury and even death of an innocent patient. The whole point of a surgery was to fix the problem that the patient had, not make the situation worse with providing the patient with sub-standard care.

Compensation from a Surgical Error Lawsuit

With every lawsuit, including surgical errors, the amount the victim would receive depends on the extent of the injuries acquired. While an estimation can be given, the exact amount that a person can recover is unknown, especially when there are so many factors that can influence the amount a victim would receive. First, the damages would have to be calculated for the general and specific damages. Once the damages have been established, then the validity of the case would be taken into account, along with any contributory negligence that the patient may have exercised.

While providing the victim with the exact amount they would be compensated is not likely, the Miami firm of surgical malpractice attorneys can provide their clients with an idea of what they can recover from their lawsuit. One of the top priorities of the firm is to obtain all possible damages from a surgical error lawsuit. Mistakes in the medical field should not be occurring so frequently, and even less should they be within the top three causes of deaths throughout the United States.

Damages That Can be Recovered from a Surgical Error Lawsuit

The types of damages a person can recover depends on the harms that were caused because of the surgical mistake. The following are the most common damages that medical malpractice victims obtain:

• Medical bills for current and future occurrence
• Lost wages from being unable to work (Currently and in the future)
• Pain and suffering (decided by the jury or judge)
• Loss of consortium
• Alternative assisted living expenses
• Expenses for transportation
• Physical therapy or counseling
• Wrongful death

While a victim can receive compensation for their damages, the family can also receive compensation if their loved one was wrongfully killed by a surgical error. With a wrongful death case, the damages that will be obtained are similar but different than the damages that a victim of a surgical error would receive. The typical damages that would be awarded in a wrongful death case include:

• Pain and suffering
• Funeral costs/Burial fees
• Loss of income
• Loss of companionship/services/consortium

Fatigued Surgeons During an Operation

The question is would a passenger of a car be worried if the driver was exhausted? Or would the plaintiff of a case be worried that their case was going to be won because their lawyer was tired? I would assume that answer to those questions is yes. The same applies to a surgeon performing a surgery while he or she is fatigued. Although surgeons may be used to the fact of getting little to no sleep, fatigue still plays a huge role on a person’s body, especially an individual that requires full mental capacity to perform their job functions.

With time, a body that is constantly being deprived of sleep will eventually not function properly. A human body requires sleep, which is something a surgeon should get even with the demands of their job. It is impossible that a surgeon is able to use the full capacity of their brains while having an exhausted body, even if they claim they can. Sleep is a basic need for a well-functioning body. There are some people that require hardly any hours of sleep to function, while other body’s that require more hours because every person has a different need. What happens when a patient is under the care of a surgeon who was fatigued?

Fatigued doctor’s has been a concern for many years, yet it is a problem that continues to happen. If a patient was injured because of this negligence, malpractice attorneys will work with their client to form a legal suit against them.

Could a Fatigued Surgeon Constitute a Medical Malpractice?

If the surgeon committed a mistake during an operating because they were fatigued, then the surgeon can be held liable for not getting the adequate amount of sleep. Severe injuries, and even death can derive from a fatigued surgeon. Some mistakes include:

• Perforation of an organ or artery
• Removal of a wrong organ or body part
• Closing up a patient with a foreign object inside
• Performing an unnecessary operation
• Using surgical instruments that were previously used
• Not effectively communicating with the surgical team
• Not properly using a surgical instrument like a vacuum
• Operating on the incorrect patient
• Not reading the patient’s medical chart, and
• More

Any of these mistakes could lead to severe repercussions for the patient. While it is known that many surgeons operate on hardly any sleep, thinking that a patient can fall victim of a medical malpractice due to the lack of sleep is not a common idea, yet it occurs.

What Are the Main Sources for Surgical Mistakes

A surgical error is defined as a mistake during a surgical procedure that could have been prevented. While there is an element of risk for every surgery that a person undergoes, there is no belief that a person will become a victim of a medical professional’s error, and not of the risk of the surgery itself. Every surgery is unique and the risks and mistakes that can derive from the surgery are as well. The main question that many people ask themselves is why are surgical mistakes happening?

A surgical error can be attributed to many elements. There are some causes that happen more frequently, but the list of the reasons why a surgical mistake can occur is endless. When a medical professional is negligent in the way they perform their job duties, a surgical error can manifest itself. When this occurs, the injured party can take legal action by suing the negligent entity with the assistance of a surgical malpractice lawyer.

Some examples of surgical errors include giving the patient too much anesthesia which results in brain damage, amputating the wrong body part, cutting through a nerve or muscle, removing a gallbladder when it was the appendix that needed to be removed, and performing open heart surgery on a patient that was supposed to have their kidney transplanted, just to name a few. While it may be hard to believe, these mistakes happen daily.

Sources That Contribute to Surgical Malpractice

As mentioned above, a mistake during an operation can derive from many sources. The main sources for surgical error include:

• Lack of skill: It would be hard to imagine a surgeon undergoing an operation of which they have no knowledge about. Well, it happens. Some physicians might have not performed the surgery before or have performed it but just a couple of times. The skill level would not be the same versus a physician who has performed the surgery countless of times.
• Lack of preoperative planning: Preoperative planning is an important process of a surgery. A surgeon must review the patient’s history and prepare for any complication that can surface from the operation. The surgeon must also ensure that his nursing staff team is prepared and up-to-date on what needs to be done.
• Taking shortcuts: The work process of a surgeon is vital when performing a surgery. A surgeon that decides to take shortcuts because they believe certain steps of the surgery are not needed, could miss important issues that could arise.
• Alcohol/Drug use: Drugs and alcohol are sometimes the answer for a surgeon to cope with the amount of stress that their job entails of. While it may be shocking, there have been many cases of surgeons operating under the influence.
• Lack of communication: Critical mistakes can derive from a lack of communication with the surgeon and his team. A surgeon requires his or her whole team in order to have a successful surgery. If there is not good communication between the medical professionals, the patient can be the one suffering the consequences.
• Neglect: The sad reality is that many medical professionals are not as careful as they are required to be when treating a patient. Many surgeons overlook many critical issues that could be fatal like ensuring that the surgical instruments are properly sanitized.

Top Five Surgical Errors Performed that Lead to Medical Malpractice

No one enjoys having surgery, it is a terrifying process because it is something that is out of our control. An individual going under the knife are relying on their doctor to fix the problem that they may have whether it is from an injury or illness. The tricky thing with surgery is that mistakes do not only happen in complex procedures, even the simplest procedure like the removal of an appendicitis, can end with a mistake. A surgery does not need be complex in nature for it to end in disastrous results.

Surgeries alone already have various risks associated with them. With the amount of different types of surgeries, comes different levels of risks with them. For example, a routine procedure of testing a woman for STD’s during her prenatal visit can end with a medical malpractice lawsuit if the instruments used were not properly sanitized. When an individual pictures a surgical mistake, they think about a surgeon cutting through muscle or another organ. While these mistakes do happen, the most common surgical mistakes might not be so obvious. An individual that was a victim of a surgical error could use the assistance of a surgical malpractice attorney.

The Five Most Common Surgical Mistakes

Leaving Behind a surgical instrument or foreign object inside the patient: While many people would be surprised to find that a gauze pad or scalpel was left inside of them, it is not uncommon for it to happen. If the surgical team is distracted and does not keep count of the instruments used for the operation, it can be left inside the body. This grave mistake can create a severe infection and can even be fatal if not treated immediately.

Not operating on the right site: There are times when a surgeon has to perform multiple operations in the same day. When they are rushed, operating on the incorrect body part can occur. If they do not take the time to read the patient’s chart, they could amputate the wrong leg and even fail to transplant a kidney.

Incorrect patient: Believing that this is a common surgical error is astonishing. Operating on the wrong patient continues to happen in the medical field. When the surgical team fails to do preoperative verification, they can commit the error to operate on the wrong patient. A patient might be going under the knife to remove a tumor, but they end up having their leg amputated instead.

Damage to nerves: A simple hand tremor of slip can cause the scalpel to cut through a nerve. Typically, nerve damage is permanent and can cause a lifetime full of pain and even cause a disability.

Mistakes by an Anesthesiologist: This is the surgical mistake that is the deadliest. When an anesthesiologist does not verify the patient’s chart before administering the medication, does not keep an eye out of their vital signs during the anesthesia, or does not follow-up after the anesthesia, mistakes can happen. If too little or too much anesthesia was given to the patient, they can suffer brain damage due to the lack of oxygen that the brain would be receiving.

Top Five Unnecessary Surgeries That Are Performed

Millions of surgeries are performed each year, but to the surprise of many, the majority of those surgeries turn out to be unnecessary. What? Yes. Medical professionals are performing unnecessary surgeries. The reason for an unnecessary surgery can simply be a misdiagnosis, while it can also be to obtain more money from the patient. Corruption among surgeons is not unheard of. Many medical professionals perform their job for the money, not for the well-being of the patient.

Surgeries That Can Be Ordered When it is Not Needed

While some surgeries are needed to repair damage and save lives, there are other surgeries that are not required. The top five most common unnecessary surgeries that are performed include:

• Surgery on the Knee: It has been proven that knee surgery is not beneficial to the patient. In fact. Psychical Therapy has a greater effect on the patient than surgery. Knee surgery deteriorates the patient’s condition rather than ameliorate it.
• C-Section: The use of cesarean sections are on the rise. A C-section is often ordered when there are complications of medical conditions with the pregnant mother. Some causes for C-section include a baby in breech position, multiple cesareans, a baby in fetal distress, a prolonged labor, just to name a few. Sometimes, because a C-section is so commonly used, a physician orders it even though it might not be needed. Ironically, sometimes a C-section is not ordered when it is absolutely necessary.
• Back Spinal Fusion: This procedure only has a success rate of 25%, meaning that every one in four people that will perform this surgery will be successful, while the other three will have an unsuccessful surgery. Why do doctor’s perform this surgery with such low chances of success? Spinal fusion back surgery is actually one of the most expensive surgeries there is.
• Hysterectomy: This is a procedure that removes a woman’s uterus. Physicians often turn to hysterectomies when they do not evaluate other methods of treating a woman’s infection or cancer. 70% of hysterectomy cases have been found to be unnecessary, while many hysterectomies are performed without any consent.
• Angioplasty and Stents: This procedure is performed to open up clogged and narrowed arteries. While this procedure can be life-saving, studies have found that it is often not required and conventional treatments are more effective and less expensive.

Frequently Asked Questions About  Surgical Malpractice

Question: What is a surgical error?

Answer: A surgical error is defined as a mistake that is committed during a surgical procedure. Medical professionals are required to adhere to a standard of care for all of their patients. When this standard of care is not provided at a high-quality level, errors can be committed.These mistakes can occur for a number of reasons including drug use, lack of communication, and negligence, just to name a few. The mistake can be committed by the surgeon, the assisting nurse, and even the anesthesiologist. Sadly, the patient is the one that suffers the consequences.

Question: What Are the most common surgical errors?

Answer: Surgical errors can manifest themselves in many forms, some of those include removing a wrong body part, operating on a wrong patient,  administering too much anesthesia, leaving a surgical instrument inside the body, piercing an organ, nerve damage, and more.

Question: How many people fall victims of a surgical error?

Answer: Surgical mistakes are a common amongst the medical world. In fact, there are about 4,000 surgical errors every year. Sadly, these mistakes continue to happen even though they have been recognized.

Question:What damages can be compensated through a surgical error lawsuit?

Answer: When an individual suffers a surgical error, they can seek compensation for their damages that were caused by a medical professionals error. Some damages that can be awarded include medical fees, in-home living, therapy costs, pain and suffering, loss of consortium, and more. The damages a person will receive depends on the severity of the injury and how much harm it caused them and their families. A family member can also file a lawsuit under a wrongful death if their loved one dies from a surgical mistake.

Question:What is the best way to avoid mistakes during surgery?

Answer: Mistakes of any type can be prevented when more safety and precautions are taken. Surgeons need to ensure that they effectively communicate with their surgical team before performing a surgery, they need to review the patient’s chart beforehand, they need to ensure that all the instruments that will be needed during the surgery are available, among other things. While taking preventative measures will help reduce medical mistakes, surgical errors will still happen.

Additional Information

• What is “contributory negligence” in a Medical Malpractice case?
• How Long Will my Medical Malpractice Case Take
• How to Prevail in a Medical Malpractice Lawsuit
• Different Aspects of a Medical Malpractice Case
• What is “Informed Consent” in a Medical Malpractice Case
• Top 4 Medical Mistakes That Are Committed
• Top 6 Reasons for Medical Malpractice Occurrence
• How Long Will my Medical Malpractice Case Take?
• Do I have a Medical Malpractice Case?