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Can You Sue if an Operation Goes Wrong?

For an elective surgery, the patient may end up waiting weeks or months for the operation. Medical emergencies may require immediate surgery. For planned or unplanned surgeries, the patient experience is often interrupted by being under anesthesia. Anesthesia allows the patient to go through a procedure without feeling pain. 

However, the patient may also not have any idea what happened during surgery. Victims of surgical errors often do not know that something went wrong during an operation. It is only after, sometimes weeks or months later, that a patient discovers something went wrong and is causing problems. If you suffered an injury after a surgical procedure, talk to your experienced medical malpractice team for legal advice. 

What Can Go Wrong During Surgery?

There are a lot of possible problems that can come up during surgery. Surgical errors can start before the patient even goes in for the operation and continue during post-surgical recovery. Errors can be caused by defective equipment, negligent medical care, or hospital staff failing to properly sterilize surgical equipment. Other errors can be caused by defective drugs, negligent hospital staff, or diagnostic mistakes. 

Many patients do not know when something went wrong or what was the cause of a medical injury. Instead, it may take a review from a medical expert to identify what went wrong and who was responsible. Many surgical errors involve multiple failures by more than one person. There are supposed to be safety checks for surgical procedures but they can be ignored, skipped over, or passed off as someone else’s responsibility. 

The surgical patient may have a medical malpractice claim when their injury was caused by professional negligence, defective surgical devices, or a negligent hospital employee. The person or party responsible for causing the injury can be held liable for damages, including: 

  • Medical bills
  • Loss of income
  • Future medical care
  • Pain and suffering 

According to a government report, surgical errors in the U.S. cost $1.5 billion per year. However, that report is over a decade old and even then may have underestimated the true cost. The actual number of surgical errors may not be known because many surgical mistakes are never reported. Doctors may not want to tell the patient they made a mistake because of fear of a lawsuit or to protect their reputation. 

The report found a staggering one in every 10 patients who died within 90 days of surgery died because of a preventable medical error. About 1/3rd of those deaths happened after the patient was discharged from the hospital. Patients look forward to going home after surgery but they may not expect that they are being sent home after a preventable medical error and will die because of something that could have been prevented with proper medical care. 

Examples of the reported surgical errors included acute respiratory failure, surgical site infections, and nursing care errors. According to the director of the Agency for Healthcare Research and Quality (AHRQ), “Eliminating medical errors and their after effects must continue to be top priority for our health care system.” Unfortunately, medical errors continue to plague surgical patients and little has changed to improve patient care.

What Are Types of Surgical Errors?

There are many types of surgical errors. In some cases, a patient’s injuries are caused by multiple errors. Common types of surgical errors resulting in malpractice claims include: 

  • Lack of informed consent
  • Surgical site infection 
  • Wrong patient errors
  • Wrong site surgery
  • Wrong part surgical errors
  • Retained foreign objects
  • Anesthesia errors
  • Medication errors
  • Defective medical device injuries
  • Improper nursing care

In a study published in the medical journal Surgery, there are more than 4,000 surgical errors caused by negligence every year. These include so-called never events like wrong site surgeries and retained surgical objects. These are known as never events because they never happen unless someone was negligent. Despite the common medical community understanding how serious these errors can be, they continue to happen every year, even in the best hospitals.

Lack of Informed Consent

This is a type of medical malpractice claim that involves problems before the surgery even begins. Before a patient undergoes a medical procedure, their doctors should make sure the patient knows what they are in for. Informed consent means the patient understands the risks, benefits, and consequences of treatment. The basic elements of informed consent include:

  • Nature of the procedure 
  • Risks
  • Benefits
  • Alternatives

If the patient is not informed about the side effects or risks of surgery, they cannot give meaningful consent to undergoing a procedure. If the patient suffers an injury that they were never told about, the patient may be able to file an informed consent malpractice claim against the surgeon. 

Surgical Site Infection

With an invasive surgery, the body is exposed to bacteria, viruses, fungi, and other microorganisms. The outside of the body is used to fighting off these threats but surgery can introduce viral and bacterial infection from unsterilized surgical instruments, lack of proper hand washing, or airborne contaminants in the surgical setting. If surgeons, nurses, and hospital staff fail to properly sanitize and disinfect the surgical area, equipment, and hands, the patient may be at risk of surgical site infections (SSI).

Treating SSIs requires immediate diagnosis and treatment. Failure to quickly address infections can allow the infection to spread, causing tissue damage, organ failure, and sepsis. According to the New England Journal of Medicine, surgical site infections were tied for the most common type of healthcare-associated infections (HAIs). Both pneumonia and SSIs made up 24.3% of hospital acquired infections.

Wrong-Patient or Wrong-Site Surgery

Wrong-site, wrong-side, wrong-patient surgical errors are all types of never events. There are specific protocols in place to prevent these types of accidents but they still occur. These kinds of serious medical mistakes can happen when surgeons are rushing, clinics overbook procedures, or because of a lack of training or supervision. 

A wrong patient surgical error can happen when two patients are mixed up and one or both undergo the wrong procedure. To avoid these kinds of mistakes, surgical teams are supposed to go through a check list and time-out procedures, confirming: 

  • Correct patient
  • Correct side 
  • Correct imaging
  • Correct site 
  • Correct procedure
  • Correct instruments

In a wrong-side surgery, the surgeon may have the correct procedure and the correct patient but they operate on the wrong side of the body. This has caused doctors to remove a healthy kidney instead of the diseased kidney, or amputate the wrong leg, leaving an injury victim without either kidney or either leg. How is a doctor supposed to explain they took out a healthy body part and left the diseased one in place?

Retained Foreign Object Injuries

Another never event involves leaving surgical objects behind in a patient after surgery. This can be one of the most troubling for patients because they may not know that there is a surgical sponge, gauze, needles, or even a scalpel in their body. Instead, it may take weeks before the patient develops severe pain from an infection before the foreign object is discovered. In some cases, it can take months or longer to find out about a retained object injury.

Anesthesia Errors During Surgery

Anesthesia usually involves gas or intravenous drugs to put a patient under. Anesthesia is common in many types of surgery but it still comes with serious risks. For example, if an anesthesiologist fails to monitor the patient, the patient can suffer a cardiac arrest or stop breathing. If the patient gets too much anesthesia and is not resuscitated in time, it can cause serious injury, permanent brain damage, or even death. 

Other anesthesia errors may involve negligent intubation. During intubation, a pathway to the lungs is kept open during surgery to make sure the patient is getting enough oxygen. Improper intubation techniques can cause injury to the throat and could risk bleeding into the lungs. 

Defective Medical Devices

Product defect injuries may not be caused directly by the surgeon but could be caused by a defective medical device implanted in the patient. In product liability lawsuits, you don’t have to prove any single person was negligent. Instead, the fact that the device was defective in the way it was designed or manufactured is enough for liability. An injury victim can seek damages from the manufacturer, distributor, or vendor of the medical device. 

Every year, the Food and Drug Administration (FDA) recalls medical devices that are found to be unsafe. Defective implanted medical devices can include: 

  • intrauterine devices (IUDs)
  • Implantable cardioverter defibrillators (ICDs)
  • Artificial hips and knees
  • Pacemakers
  • Breast implants
  • Spinal fusion screws and rods
  • Metal screws and plates
  • Transvaginal mesh
  • Coronary stents

Negligent Nursing Care Injuries

Some operation injuries can happen after the surgery is over. When a patient is recovering from surgery, they may have to stay inpatient in the hospital for a few days, weeks, or longer. During this time, other medical staff including doctors, nurses, aides, and other hospital employees may be caring for the patient. Failure to properly care for a patient in recovery can result in: 

How Can I Recover Compensation After a Surgical Error?

You can get compensation after a surgical error by filing a medical malpractice claim. Medical malpractice is a type of professional negligence lawsuit where the injury victim claims the doctor caused the injury by failing to follow medical standards. Doctors owe their patients a duty of care. The duty of care requires the doctor to act like a reasonable doctor would under similar circumstances. 

For example, if medical standards require a doctor to properly wash their hands and arms before surgery but your doctor doesn’t, which causes an infection, then the doctor may have been negligent in causing the infection. If a doctor is found to be negligent and the cause of your injury, they may be financially liable for damages.  

In a medical malpractice lawsuit, negligence is shown by using a medical expert. Your attorney will have a doctor in a similar practice area review your case. The expert may look at medical records, hospital records, and any other evidence gathered in your case. The expert can identify where the deviation from medical standards occurred, what medical standards apply, and how the deviation caused your injuries. 

What Is the Discovery Rule for a Delayed Discovery of a Surgical Error?

In most medical malpractice lawsuits, there is a strict time limit for filing a claim. This is known as the statute of limitations. For example, in Chicago, the time limit to file a medical malpractice claim for most cases is 2 years. The time limit is the same for the statute of limitations in Philadelphia. However, the time limit may be longer or shorter in other states. 

What would happen if there was a medical error but you did not discover it until 18 months after the surgery? Would you only have 6 months to file a lawsuit? It depends. In some states there is something known as the discovery rule. Under the discovery rule, the clock does not start running until the injury victim found out about or reasonably should have found out about the mistake. 

In some states, the discovery rule extension only applies to foreign objects retained after surgery, because those kinds of medical errors are some of the most common for a delayed discovery. If you want to know how much time you have to file a medical malpractice lawsuit, talk to a medical malpractice lawyer about your case. Don’t wait too long because missing the statute of limitations timeline could mean you don’t recover anything for your injuries. 

Was Your Surgery Injury Caused by Malpractice?

How can you be sure if your surgical injury was caused by malpractice or just a risk of surgery? In many cases, the victim is not 100% sure they have a claim. Sometimes it is just a feeling that something went wrong or the doctor isn’t telling you everything they know. You can get a free case evaluation to find out if you might have a claim and how much you may be able to recover in damages. 

Contact experienced trial attorneys who have successfully represented medical malpractice victims and their families to recover financial compensation for injuries caused by an operation gone wrong. Call a malpractice lawyer to find out more about your case. For a free consultation, contact Gilman & Bedigian online or at 800-529-6162.

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    Call 800-529-6162 or complete the form. Phones answered 24/7. Most form responses within 5 minutes during business hours, and 2 hours during evenings and weekends.

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