Failed surgeries happen when a surgeon makes a surgical error. A surgical error is a preventable mistake made during surgery. There is some inherent risk in any surgery, and patients typically sign an informed consent form acknowledging that they are aware of the risks of surgery. Errors that lead to a failed surgery are beyond what a patient knew were possible before agreeing to the procedure.
Failed surgeries often leave victims with pain, inconvenience, and financial costs associated with the surgical error. Medical malpractice law states that if an injury or death occurs because of a surgical error, and negligence or inattention caused the error, the victim can file a surgery complications lawsuit and recover damages if the error could have been prevented.
Some examples of surgical errors that cause a failed surgery include:
- Wrong-site surgery, in which the doctor performs surgery on an incorrect part of the body.
- Wrong patient surgery, where the surgeon operates on the wrong person, often meaning that the patient who needed that particular surgery did not get it.
- Damage is caused by surgical instruments or tools being left inside the body after surgery is completed.
- Anesthesia errors – either too much or too little anesthesia is used.
- Injuries to nerves or other internal organs when the surgeon causes damage with their instruments.
- Infection caused by instruments that were not cleaned or sanitized properly.
- Unnecessary surgery that a patient did not need and ended up harming them.
Are Surgical Errors Considered Medical Malpractice?
Not all failed surgeries are medical malpractice. To be considered medical malpractice and to find someone liable, a surgical error must have been caused by a medical professional’s actions falling below the accepted standard of care. A medical professional in the same specialty as the doctor accused of malpractice will typically have to testify that the defendant’s actions or inaction breached the standard of care.
Medical malpractice laws encompass more than just surgical errors. Surgical errors are just one form of medical malpractice. Other medical malpractice claims might result from the following:
- Delayed diagnosis
- Failure to treat
- Birth injury
- Medical device liability
How Do I Prove Medical Malpractice?
There are several elements to a medical malpractice claim. A Plaintiff must prove all of them to be successful and recover damages.
- Doctor-Patient Relationship: You must have had a relationship with the doctor you are suing. You cannot sue a doctor you overheard giving medical advice in a social setting. It must be someone who was in a position to be treating you.
- Negligence: The doctor was negligent or failed to meet the standard of care in their specialty. The doctor caused you harm because they did not perform in a reasonably skilled manner.
- Negligence caused the injury: You must prove that the doctor’s negligence was more likely than not the cause of the injury.
- Damages: Even if a doctor’s actions fell below the standard of care, they are not liable if they did not cause you any harm. Damages might include physical pain, mental anguish, additional medical costs incurred because of the injury, or lost wages due to an inability to work.
A successful medical malpractice claim must be supported by strong evidence. One of the most essential pieces of evidence in a medical malpractice claim is the patient’s medical record. It will show their condition before the failed surgery or other alleged negligence, as well as any diagnoses or treatments received.
Other important evidence will include documentation of the doctor-patient relationship, such as paperwork in your medical record showing they diagnosed or treated you. To show that the doctor was negligent, you will need expert testimony that the treatment fell below the standard of care.
Can I Sue a Doctor for Failed Surgery?
Many doctors are not employees of the hospital where they perform surgeries. Instead, doctors are sometimes contractors who can treat patients and perform surgeries at one or more hospitals. Therefore, you cannot sue the hospital for medical malpractice or failed surgery – only the doctor. If the doctor is an employee of the hospital, you can include the hospital in your lawsuit.
Some health care providers require that any legal disputes be handled through mandatory arbitration. Arbitration is a method of alternative dispute resolution that uses a neutral third-party arbitrator or panel of arbitrators to decide the case rather than the court system. The parties similarly present their case by submitting evidence and calling witnesses, but there is no judge or jury, just the arbitrators. Some arbitration is binding, meaning that the parties cannot file their claim with the court if they are not happy with the decision following the arbitration.
How Long Do I Have to Sue a Doctor After Surgery?
You have a limited time to sue for a failed surgery. The statute of limitations for a medical malpractice claim varies from state to state. However, the clock typically starts running as soon as you know (or should have known) that you were harmed. Each state law has its own nuances and exceptions, so you must know the filing deadlines in your state.
It is very important to file as soon as the harm is discovered to not miss your chance to recover damages for your injury. The doctor and their attorney might make one argument that you knew of the injury or should have known of the injury for much longer, meaning that you should have filed the claim sooner. In many states, the statute of limitations is only two years, so time is of the essence.
What Should I Do First After a Failed Surgery?
There are some crucial steps you should take when suing after surgery. First, communicate with your physician and allow them to fix their mistake. Be sure to document any symptoms, pain, additional appointments, and costs associated with the harm you allege. Keep detailed records and notes of all conversations with your doctors. Document the moment you knew or suspected something was wrong.
If you suspect something went wrong during your surgery and you are physically able to, get a second opinion from another physician. Another physician may provide guidance regarding whether the first doctor was negligent. They may also be an essential expert witness if the case proceeds to trial.
What Remedies are Available for Failed Surgery Lawsuits?
The goal of any award following successful medical malpractice or failed surgery lawsuits is to make the plaintiff “whole” again. Plaintiffs may recover compensatory damages for the following:
- Lost wages.
- Additional medical bills.
- Pain and suffering.
- If the patient dies due to the failed surgery, the patient’s family may file a wrongful death suit and be awarded monetary damages.
Punitive damages, intended to punish, are available if it is found that the harm was intentional.
In some states, awards for non-monetary damages (such as pain and suffering) are capped at a certain amount. For example, in Florida, a Plaintiff can receive up to $1 million for non-monetary damages.
Should I Hire an Attorney for Help with a Failed Surgery Lawsuit?
If you think you have been injured because of a failed surgery, consult with a personal injury lawyer. An experienced attorney can review your medical record and the facts of your case and give you advice regarding filing a claim for medical malpractice. It is essential to consult with an attorney as soon as you know you have been harmed so that your lawsuits are filed before the statute of limitations has run out.