What Legal Rights Do Patients Have After A Surgical Error?

Have you or a loved one suffered an injury, illness, or other health complication due to a preventable surgical error? Our Bronx medical malpractice lawyers can help you seek accountability and financial compensation.

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operating room

Medical negligence in the operating room can lead to serious surgical errors, which can have devastating health consequences for patients. While it’s normal to be nervous about something going wrong during surgery, most patients still trust that nurses, surgeons, and other medical staff will do their jobs effectively and ensure that the surgery goes smoothly. In most cases, medical professionals live up to their trusted reputations and the surgery is completed safely. But sometimes, these professionals make mistakes during the operation.

In virtually all surgical error cases, the mistake could have easily been avoided with better medical care. When medical negligence leads to a surgical error that causes health complications for a patient, that patient could have grounds for a medical malpractice lawsuit.

What Are The Most Common Surgical Mistakes?

In the medical community, surgical mistakes are considered “never events” – meaning there’s no legitimate reason for committing a surgical mistake. When medical professionals do their jobs effectively, these mistakes should never happen. However, surgical errors are in reality one of the most common forms of medical malpractice. According to a Johns Hopkins University School of Medicine malpractice study, there are about 4,000 preventable surgical errors every year in the United States. In an average year, these errors result in over $1.3 billion in financial compensation awarded to patients who have suffered related health problems.

Most surgical errors fall into one of three categories, which occur at the following frequencies:

  • Leaving an object inside the patient’s body after surgery, such as a sponge or towel (about 39 times per week)
  • Operating on the wrong side or wrong body part (about 20 times per week)
  • Performing the wrong operation (about 20 times per week)

In most cases, patients aren’t aware of the surgical error until they’ve begun to develop related health complications. This means that the true frequency of surgical errors is likely much higher than the Johns Hopkins estimate of 4,000. Surgery errors are usually only reported if the patient suffers health problems because of the error. Countless other surgical errors go unreported.

When Is A Surgical Error Considered Medical Malpractice?

In order for a surgical error to constitute medical malpractice, you and your lawyer must establish three things:

  • The medical professional named in the lawsuit was responsible for your medical care
  • This medical professional failed to meet the medical standard of care by making a surgical error
  • This surgical error directly caused an injury, illness, or other health problem

Establishing negligence usually requires a detailed review of medical records and evidence by a qualified medical expert. Your medical malpractice lawyer will find one of these experts and work with them in order to prove that a medical professional’s surgical error directly caused your injuries and related damages.

What Is The Protocol For Avoiding Surgical Errors?surgeons during operation

Throughout the United States, hospitals and healthcare facilities follow certain procedures which are designed to eliminate the risk of a surgical error. The 21,000+ hospitals accredited by the Joint Commission follow the Universal Protocol for Preventing Wrong Site, Wrong Procedure, Wrong Person Surgery. These guidelines include the following three steps:

  • Pre-procedure or pre-operative verification – Medical staff in the operating room are required to double check all medical documents before the operation, including patient identification with two identifiers (patient name, medical record number, date of birth), medical history and physical in the medical record, and signed consent forms with the correct procedure verified.
  • Marking the operative/procedure site – The site of the surgery must be marked with a “YES” in indelible ink and verified for operations involving right/left distinction, multiple structures (e.g. fingers, toes, etc.), or multiple levels (such a spinal procedure).
  • Time-out (final verification) – Operating room staff must take a pause and communicate with each other to confirm the patient, procedure, site, and side before beginning the operation. They must double-check that they have the correct patient, the correct procedure verified with a consent form, the correct site and side (with markings), correct patient position, and the availability of the correct implants and any other special equipment or requirements.

When the Universal Protocol is followed, there should be no risk of a surgical error. If medical staff failed to follow all of these steps before your procedure and an error resulted, you’ll likely have a strong case for a medical malpractice lawsuit.

What Should I Expect When Filing A Malpractice Lawsuit?

Medical malpractice claims for surgical errors are generally more straightforward than some other forms of medical malpractice, but they’re still more complicated than personal injury claims. Hospitals and doctors are both protected by powerful malpractice insurance companies, who have lawyers and staff that specialize in denying claims. Building a successful case takes a lot of hard work from both an experienced medical malpractice lawyer and medical experts, who can testify on your behalf.

The Bronx medical malpractice lawyers at Lipsig, Shapey, Manus, and Moverman are prepared to work with the medical community to help your family get the financial support you need while recovering from your preventable health problems. To find out more about how we can help you file a medical malpractice lawsuit, get in touch with us today for a free consultation.