A surgical procedure is one of the situations where patients must rely entirely on every member of the operating room team to perform their duties correctly. Most surgeries are completed safely, but mistakes can still occur.
Data from the National Practitioner Data Bank shows that surgical errors are among the leading categories of malpractice claims, accounting for roughly one-quarter of all cases.
Usually, surgical errors cannot be identified instantly. It may take days, weeks, or even months for patients to notice the symptoms of complications associated with the problem.
Families who are not yet sure whether a bad surgical outcome even qualifies as a legal claim make it more complicated. That’s why firms such as Parker personal injury lawyer Susan Fuller regularly field exactly these kinds of initial calls and can help identify whether a case needs to move toward a malpractice-specific track.
To learn about the nature of surgical malpractice claims and their reasons is the first step that a patient's family should take.
So understanding how medical malpractice and surgical mistakes happen can help patients recognize when they might have reasonable grounds for a legal claim and get the right kind of compensation.
All surgical results are not necessarily considered medical malpractice. Surgery involves some risks, which patients are aware of before surgery, and poor outcomes can occur even if the surgical team performs its actions properly.
It does not matter how bad the results were. The question of malpractice is whether the standard of care was met.
When it comes to standard of care, it means a level of skill and diligence that a reasonable surgeon with the same qualifications and specialty should exhibit in such circumstances. If the provider acts unreasonably and violates the standard of care, resulting in damage to the patient, it may be qualified as medical malpractice.
This distinction between an unavoidable complication and an actual departure from the standard of care is where most surgical malpractice cases are won or lost. Coverage such as “Surgical Error vs. Complication” walks through this same threshold question in more detail, including which specific outcomes tend to fall on each side of that line.
Expert testimony is invariably required for this to be proved. Courts never presume that jurors can assess the technical standards of surgery by themselves.
Professional medical experts, usually surgeons with experience in the particular field, examine the surgical notes and other documents and give evidence as to what the required standard was and how the defendant fell below it.
More than half of the US states require that a plaintiff file an affidavit of merit by a qualified medical expert before a medical malpractice lawsuit can proceed. It is to certify that the claims have been professionally reviewed by an expert and thus are reasonable.
Retained foreign body cases are the most frequently reported never-event surgical incidents. A study on more than 9,000 closed malpractice cases contained within the National Practitioner Data Bank (NPDB) revealed that they constitute almost 50% of all never-event surgical claims.
This is where items like sponges, forceps, needles, or parts of surgical instruments are retained in patients because of the failure to follow the correct surgical count procedure.
Wrong-site and wrong-procedure surgeries are some of the most avoidable cases of surgical malpractice. Wrong-site surgeries rose by 13% in 2024, with 56% occurring on the wrong side of the body.
According to the Joint Commission's 2024 Sentinel Event Data, wrong-procedure surgeries have 13.9% fatalities and 55% permanent injuries, and wrong-site surgery leads to 41.5% permanent injuries. Being breaches of the safety guidelines such as the Joint Commission’s Universal Protocol, these medical malpractices tend to make some of the strongest cases of medical malpractice.
There are also several cases of anesthesia malpractice, including miscalculated dosage, medication interactions, poor monitoring of the patient, or failure to address problems that arise. As a result, the patient may be conscious during surgery or may suffer brain damage. Worse still, this error could result in death.
The surgeon has responsibilities even after the surgery. It is their duty to monitor the patient after the treatment in case any complications arise. They usually watch out for bleeding or infections. Failure to do so can be considered malpractice even though the surgery has been done successfully.
Malpractice in surgery is dependent upon medical records such as operating room notes, nursing notes, anesthesia notes, instrument count sheets, images, and postoperative notes.
Absence or alteration of records is itself a valuable piece of evidence.
The patient and family members should ask for all medical records from the hospital after any adverse event has occurred since records are crucial for expert analysis and will show whether there have been any alterations.
Even though the hospital has to disclose any unanticipated results, it is better not to depend on them.
Medical malpractice suits are governed by laws known as statutes of limitations.
Statutes of limitation normally mandate the lawsuit to be filed in two to three years. Still, this duration depends on the jurisdiction.
Most jurisdictions operate under what is referred to as a discovery rule. Under this rule, the statute of limitations is calculated from the time the patient realizes, or should have realized, the existence of the injury.
The rule becomes significant in situations of surgery when the complication is not evident immediately after the procedure.
To pursue a case of surgical malpractice, medical documents and affidavits of merit are needed. Unfortunately, these documents can take months to complete, so immediate action is necessary.
Unexplained surgical complications, wrong-site surgery, foreign objects left in the body, and severe infections after the surgery are some of the reasons why people need to consult a lawyer immediately and not wait for the hospital to explain what happened.
The medical malpractice attorney will look into the case and see if there is a viable case to make.
