What to Do in Case of Surgical Mistakes That Lead Medical Malpractice

Stay rational and think about the logical steps in resolving the situation

Allen Brown - | 0 Aha! comments | Posted in category: Insurance & Legal Issues

Surgeons operating on a patient

Medical surgeries do carry an element of risk. However, in case of a surgical mistake where the doctor is liable for medical malpractice, you can seek the help of a medical malpractice attorney to consider the option of filing a lawsuit or settling the case in any other manner. Here are the steps you can take in such cases. ~ Ed.

Going under the knife can be a life-changing experience. Whether it is for injury repair, corrective surgery or cosmetic surgery, any type of surgical procedure can have an impact on your life.

We place a high amount of trust and confidence in our medical professionals when we undergo surgical procedures. Thus, the last thing anyone would want to hear is that an error occurred while the surgery was performed. This can have serious consequences for both the patient and the attending physician or surgeon.

We’ll tackle the steps a patient can take in case a surgical mistake leads to a medical malpractice lawsuit or claim.

Learn What Constitutes a Medical Malpractice

As a patient or a loved one of someone who has undergone surgery, you have to at least know some basic points on what is medical malpractice.

Surgeries can carry risks when performed on a patient. This is because doctors and surgeons are human, and can be prone to certain mistakes during a delicate procedure. No matter how experienced or knowledgeable a doctor is, there are certain circumstances that can still cause them to miss some steps or incorrectly perform some steps while performing the surgery. 

Even if an error during surgery has occurred it does not immediately mean that anyone is liable for medical malpractice. There is a medical standard of care that needs to be revisited and the medical treatment in question – whether it is a surgical procedure or not – has to be reviewed if it adheres to the medical standard and if the sub-standard treatment has brought about in harm to the patient.

Familiarize What is a Surgical Error

There is no need to get into the technical details in order to know about this. Simple logic and reasoning can define surgical errors as avoidable mistakes during surgery.

Going back to the discussion about medical malpractice, all surgeries carry the element of risk. This is the reason why patients sign a form prior to surgery that states that you understand that the surgical procedure involves certain known risks, which is called “informed consent”. 

However, there can be unexpected situations that can lead to a surgical error that goes beyond the known risks of surgery. Listed below are the common surgical mistakes you must know about:

  • Surgery on the wrong body area 
  • Infection
  • Incorrect patient/unneeded surgery 
  • Foreign object in the patient’s body 
  • Incision error 
  • Internal organ damage
  • Nerve damage 

5 Steps to Do in Case of Surgical Mistakes That Lead Medical Malpractice

Here are the steps that you need to take in case a surgical mistake leads to a medical malpractice lawsuit or claim.

Consult with a Medical Malpractice Attorney

The medical malpractice lawsuit is a complex process from both a legal and medical standpoint. Thus, you need an experienced and well-versed medical malpractice attorney to discuss the potential surgery negligence by a physician.

One of the key issues to keep in mind should be if the surgical injury could have been avoided if due attention and diligence had been applied. Also, another important matter in a medical malpractice case is the establishment of a standard of care for medical treatment (what a sufficiently skilled and competent surgeon would have done during a similar situation) and showing how the defendant involved in the case you are going to file failed to meet that standard in performing the procedure. A piece of important supporting evidence for this case is to show that the surgeon’s error caused harm to the patient.

Investigate and Review Medical Records

After your medical malpractice lawyer has talked to you about the medical condition and medical treatment that led to the healthcare professional’s alleged medical malpractice, your lawyer will then request all medical records and bills related to medical malpractice. 

Your lawyer may also request medical records related to any condition or treatment in yours or your loved one’s medical history that may impact the current case. Depending on the lawyer’s involvement, you will need to secure all these documents if you are the plaintiff or you’ll need to accompany your loved one if they are the ones filing the case. 

Some lawyers may assist you with the request and procurement of the records, while some may deem it best done between the patient and medical institution.

Once all the relevant records are obtained, your lawyer will review them to try to establish a valid medical malpractice case. This is the most crucial part because not all undesirable health outcomes could immediately mean a health care provider has committed medical malpractice.

Your lawyer may determine that there may or may not be a case and will let you know his/her assessment. If there is sufficient ground for establishing a case, your lawyer will then proceed to the next step.

Hiring a Medical Expert

Your lawyer will then search and hire an accredited expert medical witness, which is a doctor who practices in the same specialty as the defendant. The success or the filing of your medical malpractice case will depend upon the review of the medical expert and his/her opinion that the involved health care provider fell short of the appropriate standard of care.

Consider Negotiation and Settlement

Pre-lawsuit settlements are common in personal injury cases, and when it comes to medical malpractice cases, this can also happen. However, the doctor’s insurance companies would most likely advise not discussing the settlement until the lawsuit is filed and they have the chance to conduct their own pre-trial investigation. But this is still worth a try if you want to avoid the stress of a lengthy court battle.

File a Lawsuit

This process is done by your lawyer and he/she will need your opinion and approval if you want to push through with the lawsuit. The whole process can take years, which is why there is a need for a discussion before filing the lawsuit. 

Once you decide to push through with the lawsuit, your lawyer will then prepare the complaint – the document that starts the lawsuit and contains the injured patient’s allegations. This will officially start the countdown to the trial.

Wrapping Up

Surgical mistakes can be very perplexing and these are the things we don’t want to happen when we want to undergo surgery. 

We know that there are risks involved in surgery and we must also know about the worst possible scenarios that can happen when something goes wrong. 

Preparation and knowledge can go a long way when it comes to unexpected situations like surgical errors. They help you to stay rational and think of the logical steps in resolving the situation like seeking legal advice in filing a medical malpractice claim or lawsuit.

Over to you

Have you or your known ones ever experienced a case of a medical malpractice claim? Share them here in the comments to help others.



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What to Do in Case of Surgical Mistakes That Lead Medical Malpractice

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