How Do I Know if a Surgical Error Is the Result of Negligence?

Posted on November 30, 2021

All surgical procedures come with some degree of risk, and the more complex the procedure is, the greater the chance of complications. Even the most experienced surgeon can encounter serious, unexpected complications that are beyond his or her control to fix. Unfortunately, there are instances in which a surgeon, or part of the surgical team, makes a mistake that can cause serious injuries or health complications. Although surgeons are human and capable of making mistakes, if the mistake was the result of medical negligence, you may be eligible for financial compensation by filing a medical malpractice lawsuit against the hospital or health care provider responsible for your injuries. An experienced medical malpractice lawyer will protect your legal rights and assist you with the claims process.

What Is Surgical Negligence?

Surgical negligence is a type of medical negligence that occurs when a surgeon, an anesthesiologist, a nurse, or any other member of the medical staff fails to provide the accepted standard of medical care. This could be the result of a medical mistake during the surgery itself, or a failure to provide the standard of care during the preoperative and postoperative phase of the surgery. To have a successful medical malpractice case, you must be able to prove that you received a substandard level of care. To do this, you will need to prove the following:

• Duty: Your health care provider has a duty to provide the same level of care that another reasonably competent surgeon would provide under similar circumstances.
• Breach of duty: Your health care provider breached the duty of care by failing to provide the accepted standard of care. You will need to obtain copies of your medical records; testimony from a medical expert; and provide a detailed timeline of appointments with doctors, nurses, laboratory technicians and the conversations you had with each.
• Injury: You must be able to prove that the breach in care caused you harm that resulted in injuries, disfigurement, loss of function, physical or mental impairments, loss of earning capacity, or a reduced chance of recovery.
• Damages: You must be able to prove that you suffered economic and non-economic losses as a result of the injury.

What Are the Common Causes of Surgical Errors?

Surgeries can range from minor arthroscopic procedures to extremely complex and risky surgeries involving the heart, brain, and other major organs. Although unexpected complications can arise, particularly during the more complex procedures, the following are example of surgical errors that are the result of medical negligence:

• Incompetence: If the surgeon responsible for your care does not have the skill required to successfully perform the surgery, this can increase the risk of a serious surgical error.
• Poor preoperative planning: A successful surgery starts well before the actual surgical procedure. To be sufficiently prepared for the surgery, it is imperative that the entire surgical team is prepared for the procedure, as well as any potential complications that may arise. This includes closely reviewing your medical records; addressing any questions and concerns that you may have; and ensuring that the surgeon, anesthesiologist, and nursing staff are prepared for the procedure and that the necessary medication and equipment are ready.
• Improper work process: When surgeons take shortcuts or decide that certain steps of a surgical procedure are not necessary, it can cause very serious problems.
• Poor communication: When the surgeon or any member of the surgical team fails to communicate properly, critical mistakes can happen. For example, if there is a miscommunication among the surgical staff about your medication, the incorrect dosage may be administered. Another example of a communication breakdown is if a nurse marks the wrong site for surgery. Any type of surgical mistake that is a result of poor communication can have very serious consequences.
• Fatigue: Unfortunately, this is fairly common. Surgeons work extremely long hours with very little sleep. When a surgeon or any other member or the surgical team is extremely fatigued, he or she may have difficulty focusing and is more likely to make mistakes compared with someone who is well rested.
• Drugs/alcohol: There have been cases in which surgeons perform operations while under the influence of drugs or alcohol. As shocking as this may sound, it does happen, and it is a clear example of negligence.
• Neglect: If a surgeon fails to take the necessary steps to provide the best possible care to his or her patients, it can result in very serious injuries. For example, if the health care provider fails to thoroughly review your medical records and administers a medication to which you are allergic, this can have devastating, even fatal, consequences. If the surgical instruments are not properly sanitized or are known to be defective, this can cause life-threatening infections or other injuries.

When Do Surgical Errors Occur?

In addition to the surgery itself, your complete surgical care involves preoperative and postoperative care as well. Unfortunately, surgical mistakes can occur during each one of these phases.  For example, during the preoperative phase, the surgeon could miss important information on your medical history or fail to inform you about important risks associated with the procedure and alternative treatment options that are available. If the anesthesiologist fails to meet with you to answer any questions you might have, it can increase the risk of serious mistakes. In addition, too much medication can cause brain damage and fatalities, whereas not enough medication can cause you to wake up too soon, which can be extremely traumatic if this occurs during the surgery.

During surgery, there are a number of things that can go wrong if careless mistakes are made. Surgical instruments that have not been properly sterilized, inexperienced surgeons who perform surgeries they are not qualified to do, and leaving surgical instruments inside patients are just a few examples of surgical errors that can occur during the procedure. Surgeons should be alert and attentive during surgeries and ready to take the necessary steps should something go wrong.

The surgical team also has a responsibility to provide thorough postoperative care to ensure that you are recovering safely and that you do not develop an infection or other serious complications. The surgeon should not discharge you from the hospital until you have been examined and it is safe for you to go home. Prior to leaving the hospital, the surgeon should discuss next steps, including any medications that you should take and what you can do to recover quickly and stay healthy.

What Are Examples of Surgical Errors?

The type of severity of a surgical error depends on a range of factors, including the type of surgical procedure that is being performed, the instruments used, and the medication that is being administered. The following are examples of some of the most common types of surgical errors:

• Administering too much or not enough medication
• Operating on the wrong body part
• Making an incision in the wrong place
• Injuring a nerve during surgery
• Leaving a surgical instrument inside the patient

What Damages May I Receive in a Surgical Malpractice Lawsuit?

If you can prove that the surgeon, nurse, anesthesiologist, or another member of the surgical team responsible for your care was negligent in any way, you may be able to recover the following damages from the hospital and the health care provider:

• All medical expenses associated with the injury or health complication.
• Lost wages if you are unable to return to work for an extended period because of the injury.
• Loss of future earning capacity.
• Pain and suffering.
• Emotional distress.
• Punitive damages if the health care provider’s behavior was particularly egregious. For example, if a surgeon was under the influence of drugs or alcohol while he or she was performing the operation, you may be eligible for punitive damages.
• Wrongful death benefits if the surgical error caused a patient’s death.

What Is the Statute of Limitations for Filing a Medical Malpractice Lawsuit?

According to the Maryland Code, Courts and Judicial Proceedings, section 5-109, you must file a medical malpractice claim within five years of the date of the injury, or within three years of the date that you discovered the injury, whichever comes first. This may seem like a long time, but some injuries may not be apparent immediately following the surgery. For example, if a surgeon left a sponge inside a patient after performing a surgery in the abdominal cavity, it could take months or more for the patient to develop symptoms. If the surgical error resulted in a fatality, the statute of limitations is three years from the day that the patient died.

Baltimore Medical Malpractice Lawyers at LeViness, Tolzman & Hamilton Represent Victims of Surgical Errors

If you suffered a serious injury as a result of a surgical error, do not hesitate to contact the Baltimore medical malpractice lawyers at LeViness, Tolzman & Hamilton. We will thoroughly investigate your case and determine whether negligence was a factor. Our dedicated team will assist you with the claims process and ensure that your legal rights are protected. We will not stop fighting for you until we secure the maximum financial compensation you deserve. To schedule a free, confidential consultation, call us today at 800-547-4LAW (4529) or contact us online.

Our offices are conveniently located in Baltimore, Columbia, Glen Burnie, and Prince George’s County, where we represent victims throughout Maryland, including those in Anne Arundel County, Carroll County, Harford County, Howard County, Montgomery County, Prince George’s County, Queen Anne’s County, Maryland’s Western Counties, Southern Maryland and the Eastern Shore, as well as the communities of Catonsville, Essex, Halethorpe, Middle River, Rosedale, Gwynn Oak, Brooklandville, Dundalk, Pikesville, Parkville, Nottingham, Windsor Mill, Lutherville, Timonium, Sparrows Point, Ridgewood, and Elkridge.