With today’s advancements in medicine and surgical techniques, patients still need to be concerned with the quality of the medical provider performing the surgery and their credentials. While surgeries most often go well, some surgical procedures can result in significant complications. When these complications or injuries are the result of medical malpractice, then the medical professionals causing the injury should be held responsible. At Staples, Ellis + Associates, P.A., we have successfully represented Floridians in Pensacola and Northwest Florida who have suffered as a result of surgical malpractice – allowing them to recover damages that they deserve and are entitled to. If you have suffered from surgical malpractice, please contact our office for a free consultation.
What constitutes surgical malpractice?
Surgical malpractice is based on the tort theory of negligence which requires a duty, breach of that duty, injury to another, and damages resulting from that injury. Similarly, to successfully establish a claim of surgical malpractice, you must establish:
- The medical professional owed you a duty of care;
- The medical professional acted in a manner that fell below the accepted standard of care;
- The medical professional’s actions caused you to suffer an injury;
- That injury caused damages
To establish the first element, you must prove that there was a formal doctor-patient relationship. To establish the second element, you must prove that the medical professional’s act or omission failed to meet the accepted standard of care. To establish the third element, you must prove that the act or omission was the actual and proximate cause of the injury. Finally, to establish the fourth element, you must prove that the injury that you suffered as a result of the medical professional’s act or omission in violation of the accepted standard of care caused damages.
Two examples are provided below to explain what constitutes surgical malpractice and what does not:
John visits his general practitioner doctor (GP) for a regular checkup where a kidney issue is discovered. John’s doctor refers him to a specialist who agrees to examine John as a patient. Upon discovering a health concern, the specialist recommends surgery to remove a tumor which John agrees to. The surgery is completed and John returns home but soon suffers pains in his abdomen. After several days, the pain has become excruciating and John returns to see the specialist. During the examination, the specialist discovers that a medical instrument has been left inside John’s abdomen, which have since resulted in trauma in the area and infection. John is required to undergo a second surgery and remain in the hospital for a week while the infection is monitored.
Here, John likely has a claim for surgical malpractice. John has a doctor-patient relationship with the specialist, and thus the specialist owes him a duty of care. Additionally, leaving medical instruments inside a patient likely fails to meet the accepted standard of care for a specialist surgeon. John’s injuries, abdominal pains and resulting infection, are a result of the specialist’s failure to meet the standard of care. Finally, John suffered real damages through pain and suffering, out of pocket medical expenses, and other potential claims such as lost wages.
Not surgical malpractice
Consider the above scenario, but this time no medical instrument is left inside John. However, he suffers from an infection as a result of the surgery. In reviewing the doctor’s notes and the surgery, it becomes apparent that medical professionals followed protocol and John had been warned that there is a chance of infection resulting from the surgery. John attempts to bring a lawsuit for surgical malpractice. Here, the second element is not met. There is no evidence that the doctor failed to meet the accepted standard of care. Simply having an unfavorable outcome is not malpractice – a specific failure to meet a standard of care is required.
Types of surgical errors
There are many different errors that can be made during surgery. Although there are many factors that can complicate surgeries, physicians must be diligent to assess the situation and mitigate all complications. Lack of physician awareness can be dangerous during surgery. Hospital personnel other than surgeons can be involved in an incidence of surgical error. Operating room nurses and anesthesiologists have been found at fault in many cases of surgical error.
Types of surgical errors include:
- Anesthesia error
- Bowel or organ perforation
- Failure to conclusively identify the structure prior to transecting
- Damage to another organ during the surgery
- Performing wrong procedure
- Surgery on wrong body part
- Objects left inside patient
- Use of unsanitary equipment
- Nerve Damage
- Prolonged surgery
While errors can occur during any kind of surgery, certain types of surgery carry a higher risk of surgical error. More errors occur during gastric bypass surgeries, laparoscopic procedures, obstetric procedures, and plastic surgery than any other types of surgery. Most of these types of surgery are highly invasive and carry a high risk of complications from blood loss and infection from tissue exposure to air. Laparoscopic surgery although convenient to both doctor and patient with less time in recovery can be risky because of the use of remote viewing equipment to provide all sensory feedback is reduced. Inclusion of robotics increases the risk of surgeon inexperience with the procedure. The combination of this can create an unfortunate incident that the surgeon cuts the wrong organ and leaves a permanent injury for the patient for the rest of their life, and in some cases causes death.
Contact Our Pensacola Surgical Malpractice Attorney
Successfully bringing a surgical malpractice case requires a lot of work. There are many statutory requirements that an attorney must follow prior to filing a medical malpractice lawsuit. The lawyer must coordinate medical experts, pre-suit notice, witnesses, depositions, discovery, and a litany of other events to successfully prove a medical malpractice case. At Staples, Ellis + Associates, P.A., our experience allows us to conduct a surgical malpractice lawsuit in a manner that gets you the outcome you deserve. If you have suffered from surgical malpractice, please contact our office for a free consultation.