More than 200 million surgeries are executed each year globally, and regardless of the awareness of adverse effects, surgical mistakes still take place at an alarmingly high rate. In fact, according to the National Center for Biotechnology Information, in the United States alone, at least 4,000 surgical errors happen each year.
Although most surgeries performed in the United States go well, sometimes serious errors take place during the operation due to the negligence of a medical professional. When this happens, you may be able to submit a medical malpractice claim and seek compensation for your damages.
Whether a patient's surgery is "minor" or severe, the last thing they want to hear is that a mistake happened. However, just because an error occurred does not automatically mean that it was due to medical malpractice. Throughout this article, you will find information that will detail different types of surgical errors, help you determine when a surgical error becomes medical malpractice and if your case qualifies for compensation.
In simple terms, a surgical error is an avoidable mistake that happens during surgical treatment. As we all know, all surgeries pose some element of risk. Due to this, it is not uncommon to sign a form prior to undergoing surgical treatment that states that you understand that surgery involves a known risk. This is called "informed consent." However, surgical risks go far beyond the known risks of surgery–they are unexpected.
Different Types of Surgical Errors
There are several kinds of surgical errors that a medical professional can commit, leading to long-lasting complications for clients and their loved ones. Some common surgical errors include:
Infection - Infection occurs when using unsanitary surgical instruments or devices during surgery causes cross-contamination of disease. If the patient is already immunocompromised, the result can be infection and even sepsis, which can be fatal.
Wrong Site Surgery - Wrong site surgery occurs when a client's surgical treatment is performed on the incorrect body part or organ. In fact, there have been numerous circumstances where clients have had the incorrect limb amputated.
Surgical Instruments Left in the Body - This is actually more common than one would think. Sometimes surgical instruments are left inside the body after an incision is sutured. A lot of hospitals require that all instruments, devices, gauzes, etc., be accounted for before and after surgery, but not all do. Serious complications and infections can arise from surgical instruments being left inside the body.
Wrong Patient/Unnecessary Surgery - Wrong patient surgery is not as typical as wrong site surgery; nevertheless, it still does happen. When a patient receives unnecessary surgery, combined with the issues that come with surgery, it can have negative, lifelong consequences.
Damage to Internal Organs - When organs and tissue are damaged during surgical treatment, a surrounding organ can be mistakenly pierced or punctured with surgical instruments such as scalpels, scissors, or even lasers. Organ tissue is especially delicate, and if it becomes punctured or pierced, it can result in major and lifelong health problems.
Nerve Damage - When a surgeon makes a physical error while administering anesthesia, it can cause the patient to suffer minor to serious nerve damage. This can be due to an inexperienced or negligent surgeon and can result in paralysis and other complications.
Complications That Result From Surgical Errors
No matter what the cause was for your surgical error, it can trigger lethal or incapacitating complications, including:
Nerve Damage - As we touched on above, nerve damage can cause numerous complications. Those include muscle weakness and partial or full paralysis in the location that is impacted. In some instances, additional surgeries and physical rehabilitation might be required in order to help patients restore strength.
Organ Damage - Damage to internal organs is a possible complication, specifically in instances where a surgeon uses the wrong equipment, surgical instruments, or surgical techniques.
Scarring - Operating on the wrong body part or the incorrect side of the body can often lead to unnecessary scarring.
Internal Bleeding - While bleeding risks come with all surgical treatments, internal bleeding can be the outcome of negligence or unnecessary roughness during surgery. When there is internal bleeding after surgery, it can go undetected and significantly increase the risk of death or serious complications for the patient.
Disfigurement - When serious surgical errors occur, a patient can become disfigured. A surgical error can result in the unnecessary amputation of a limb or the amputation of the wrong limb.
Disability - When a client suffers from a lack of oxygen during a procedure, too much anesthesia, or unintentional nerve damage, it can result in temporary or irreversible disabilities such as parietal or complete paralysis.
Death - Unfortunately, each year, many patients die as the result of preventable surgical errors.
Treatments After Surgical Error
Due to the severe nature that surgical errors often pose, extensive and continuous care to treat or fix the mistake is unavoidable. A couple of common treatments following surgical errors include:
Additional Surgeries to Correct Damage - In many surgical error cases, additional procedures are required in order to fix the damage. These extra surgeries can increase a patient's danger of developing infections and other issues and can become very expensive.
At-Home Care - Serious injuries may need extended at-home care from a nurse, doctor, or other medical professionals. If the surgical error has led to paralysis, a patient might need a wheelchair or other equipment to help assist their injuries. In this case, a patient's house or car may need to be modified to accommodate such injuries or devices. Additional care, equipment, etc., can become pricey.
Ongoing Need for Rehabilitation - Many surgical errors result in injuries that need long-lasting physical or mental rehabilitation. A patient may need physical treatment to relearn basic functions, such as walking, speaking, or eating. This will lead to long-lasting therapies and rehabilitation, which can become very costly.
Why Do Surgical Errors Occur?
No two surgeries are the same. That is why each surgical error has the potential to be unique. However, here are some common reasons that surgical errors take place:
Neglect - A lot of times, surgeons are simply not as careful as they need to be. This may include failing to ensure that their surgical instruments are sanitized correctly or the decision to use equipment that is known to be defective.
Poor Communication - Failing to communicate properly can cause a substantial amount of errors. For instance, a surgeon might mark the wrong website for surgical treatment or fail to ensure that all devices are properly handled. Miscommunication can likewise cause an improper dose of medication. Any of these can lead to serious repercussions.
Fatigue - Due to surgeons infamously working long shifts, this is rather typical. This frequently leads to fatigue, and tired individuals are more likely to make mistakes compared to people who are well-rested.
Drugs/Alcohol - Due to the high-stress level that numerous surgeons deal with, some turn to drugs and alcohol to cope. It might be surprising to some that a surgeon would even think to get in an operating room under the influence of drugs or alcohol; however, it does occur.
Improper Work Process - Sometimes, surgeons may mistakenly determine that they do not need to take certain steps during an operation and take shortcuts. These shortcuts can become expensive when it comes to something as serious as surgical treatment.
Incompetence - In some instances, a surgeon may not have performed the operation many times and merely lacks the knowledge, skill, or experience that it takes to perform the surgical treatment effectively. This might sound unusual; however, it can happen, and it does.
Inadequate Preoperative Planning - When a surgeon is not prepared for surgery, it can become destructive. It is important to review and prepare for any complications that may happen. This is not just limited to surgeons but can include improper preparation by nurses and assistants, failing to guarantee all equipment is prepared and ready when needed by the surgeon.
The list of possible causes continues. However, if you think your surgical mistake was due to the negligence of another, you will more than likely be able to pursue a medical malpractice case.
What is Medical Malpractice?
When you are injured due to a surgical error, you might be wondering if it means that medical malpractice has actually occurred. Although many times it may, the mere fact that a surgical error occurred does not mean that someone (or anybody) is liable for medical malpractice. In order to figure out if it is medical malpractice, the medical treatment in question, whether it was surgery or not, has to follow the practices of an accepted medical standard of care. Furthermore, the sub-standard treatment must have directly harmed you.
In other terms, if the medical error did not fall below the medical standard of care, or the treatment/surgery did not cause you harm, no malpractice occurred. A basic standard of care means "the type and level of care that a normal, sensible physician, with the comparable training and experience, would provide under the very same, or comparable, circumstances in the same community."
In the majority of surgical error cases, it is reasonably simple to prove that your physician's treatment was below the standard of care. If you are able to show that a surgical error violated that standard of care, the issue becomes whether or not you were hurt by the error.
Filing a Medical Malpractice Claim Following Your Surgical Error
Although surgical mistakes are not always as obvious as leaving gauze inside a patient or operating on the incorrect body part, they can come in a more subtle form, such as a surgeon failing to exercise sensible care at any point throughout the surgery. It's crucial to remember that doctors are humans, and like the rest of us, they too can be tired from working a lot of hours in a day when performing surgery or become sick but still show up to work. It is not as easy to "call in sick" when you are a surgeon that has several operations set up in a day.
However, whether the surgical injury could have been avoided if the standard of care had been exercised is the problem at hand. When developing the medical standard of care in a medical malpractice case, there are a number of crucial steps. Those include:
Determine what a reasonably skilled surgeon would have done under the same circumstances.
Show how the surgeon in question failed to meet that medical standard of care during the operation.
Prove that the surgeon’s negligence was what caused the patient harm.
Once those three key factors have been established, you most likely have a valid medical malpractice case. What you do next is very important.
Hire An Experienced Medical Malpractice Lawyer
As soon as you have established that you have a feasible medical malpractice case, it is essential to consult an experienced medical malpractice lawyer. Despite the kind of surgical error you have experienced, having a well-informed attorney who has experience in medical malpractice claims makes all the difference. They will have an understanding of common surgeries and the threats they pose as well as the resources to talk to medical professionals on what the medical standard of care is. These third-party medical professionals are a huge asset to figuring out if a surgical error, in fact, happened and if it was the error that caused the issues the patient is presently dealing with.
Your legal representative can fight insurance companies and bigger corporations that typically own health centers or surgical centers to ensure that you get the compensation that you truly deserve. Because surgical errors can cause severe, life-long difficulties, your lawyer can look for damages to compensate you for both present and future complications.
Who Can Be Held Liable for My Surgical Errors?
In some circumstances, surgical mistakes may not be found for days, weeks, months, or perhaps years after an operation happens. For example, if a medical instrument or piece of gauze is left inside the patient, it could remain inside the client and not trigger any harm until long after the surgical treatment took place. In these cases, a patient might not remember who the operating surgeon was or not be able to find them since they no longer work at the same hospital.
However, there are lots of contributing elements that result in medical mistakes, and it may not only be the surgeon that is responsible for your surgical error injuries. In some cases, the medical facility in which the operation happened can be held vicariously liable for medical professionals' negligence.
Under the legal doctrine “respondeat superior,” an employer can be held liable for the carelessness of one of its employees as long as the careless act occurred within the scope of employment. This means that a hospital can be held vicariously liable for a medical mistake of a doctor as long as the following things can be proved:
The injury occurred while the employee was on the clock
The injury was the result of an activity the employee was hired to perform
The employer benefited in some way from the activity the employee performed at the time of the injury
Sometimes, hospitals will say that the medical professionals that performed the operation were not actual employees but instead were independent contractors, and therefore there is no hospital malpractice. However, the hospital can be held responsible for its own negligence if it fails to properly investigate the credentials of an acting physician before allowing them to operate at the hospital or allowing a physician to treat patients when the hospital knew they were incompetent.
Vicarious liability applies to both hospitals and doctors themselves for mistakes that resulted from negligence. This includes mistakes made by interns and medical students who were operating under a doctor’s supervision.
What Damages Can A Lawyer Help Me Recover From My Surgical Error?
If you have proven that a negligent surgeon was the reason for your injuries, you may be able to collect compensation through a medical malpractice case. Some common types of economic and non-economic compensatory damages you may be eligible for consist of:
Medical Expenses - treatments, doctor visits, physical therapy, additional surgeries, and assistive aids that your injury has left you with can all be reimbursed to you.
Disfigurement - if your injury leaves you with hair loss, missing or deformed body parts, scars, or any other obvious visual changes, you can be compensated for disfigurement.
Pain and Suffering - any physical pain and discomfort you have experienced after a surgeon harmed you, you can be compensated for. The monetary amount will be determined by the specific injury you faced as well as the length of your recovery.
Mental Anguish - any anxiety, distress, depression, and trauma you face are all types of mental anguish that can warrant compensation in a medical malpractice lawsuit.
Loss of Consortium - any loss of physical intimacy or companionship with a partner or spouse that your injuries caused may be compensated.
Disability - if your injury leaves you disabled and you are not able to work or participate in activities that you were able to before your surgery, you may be able to receive compensation.
Loss of Income - if you miss work due to your injury and the recovery process, you can be compensated for any past, present, and future wages.
The unfortunate truth is that thousands of patients are injured by surgical errors each year. These preventable mistakes often lead to medical malpractice claims against medical providers, hospitals, and surgical centers. The injuries that patients face from surgical errors can be very severe and sometimes even end in lifelong care and treatment. Not only do victims of surgical errors face physical damage, but they can also experience emotional and financial damage as well.