Surgical Malpractice

No matter how “routine” a procedure, surgery is always risky. However, not every bad result from surgery is caused by malpractice. Unintended and non-negligent complications arise every day, such as death from an undetected allergic reaction or infection that is guarded against, diagnosed, and treated in a timely and proper fashion but that nevertheless has a devastating effect on the patient’s recovery.

Surgical mistakes make up some of the most frequent medical malpractice claims. The most common types of surgeries where surgical errors occur include the following: gastric bypass; childbirth; cardiothoracic; thoracic; laparoscopic intestinal; and plastic or cosmetic surgeries.

The range of potential surgical errors is broad. Malpractice may occur in the administration and monitoring of anesthesia, pre-operative care, the type and length of the incision made during the operation, the inadvertent cutting or injuring of nerves or organs, and the failure to remove sponges or other equipment from a patient. In addition, malfunctions in operating room equipment or the operation of the equipment by medical personnel can contribute to surgical errors.

A surgeon who performs an operation is under the duty to exercise such reasonable care, skill, and diligence as are usually exercised by surgeons in similar cases. This rule creates a duty of a higher degree of skill and care of the surgeon who specializes in surgical operations than is required of the average general practitioner of medicine. No different or higher degree of responsibility is imposed on a surgeon in making a diagnosis than in prescribing treatment. The fact that the consequences of a surgeon’s negligence in performing an operation are aggravated by the physical condition of a patient does not preclude the patient from the recovery of damages. In addition to the operating surgeon, other physicians assisting the operating surgeon may be held liable for their negligence.

The outcome of any kind of medical procedure involving intrusive or non-intrusive surgery can be affected by surgical malpractice. Frequently, it is the seriousness and the permanence of the injury suffered by the patient that determines whether the medical care received by the patient was below the required standard of care.

It is the obligation of an operating surgeon to exercise the same care and skill in the necessary treatment of a patient following an operation as in performing the operation, unless the terms of employment otherwise limit the services, or the patient gives notice that he cannot or will not afford the subsequent treatment. The surgeon has a post-operative duty of care to the patient subject to variations based on the patient’s age, history, and general state of health prior to surgery, and subject to commonly known and reasonably anticipated complications and danger signals common to all post-operative patients.

Generally, a review of surgical records by a qualified surgeon is required in order to distinguish between a bad outcome resulting from medical negligence and a bad outcome arising from an unintended but known and accepted risk of surgery.