There's no such thing as a minor surgical error when the error happens to you. But not every surgical mistake equals medical malpractice. Mistakes sometimes happen, even with the best of medical care. How do you know when a surgical error becomes medical malpractice?
After a quick introduction to the basics of medical malpractice law, we'll find out when surgical mistakes rise to the level of a potential malpractice claim. We'll also explain why surgical mistakes sometimes happen, and we'll take a look at a few of the most common surgical errors.
The law doesn't guarantee mistake-free medical care. Instead, it protects you from substandard medical care that causes you harm. Substandard medical care is called medical negligence. Medical negligence that causes you an injury is what the law calls medical malpractice. If you prefer, you can think of it this way:
Medical negligence + injury + causation = medical malpractice
The line that divides "medical negligence" from "not medical negligence" is called the standard of care. If your surgeon's care meets the applicable standard of care, there's no negligence. You don't have a medical malpractice claim.
While there are different ways to describe it, here's a common definition: The standard of care requires your surgeon to provide you with at least the same level of care as a reasonably careful surgeon with similar training and experience would provide under similar circumstances.
In other words, the standard of care asks: Would a reasonably careful surgeon with the same education and training as yours do what your surgeon did? If the answer is yes, then your surgeon met the standard of care. But if the answer is no, then your care was substandard, or negligent.
Proving medical negligence only gets you halfway to your goal. To reach the finish line, you must show that your surgeon's neglect caused you to suffer an injury. In practice, these elements—injury and causation—usually aren't difficult to prove.
Are you significantly worse off now than you were before your surgery? If so, then you might have been injured. The real issue is whether your injury is serious enough to justify the expense of a medical malpractice claim, which is almost certain to be substantial. That's a discussion you'll need to have with your medical malpractice lawyer.
Most often, causation follows from proof of negligence and injury, and it isn't seriously in doubt. But there are cases when causation is exceptionally hard to prove. If that's true in your surgical malpractice case, you'll need to rely on your lawyer and your medical expert to make out this essential element.
All surgeries involve an element of risk. For example, post-surgical infection is a known risk of any surgical procedure. An infection can happen even when your surgeon did everything according to the standard of care. When you're admitted for surgery, you'll have to sign a form that says you understand surgery involves certain known risks, a process called "informed consent."
When a known risk happens because your surgeon deviated from the standard of care, that might be medical negligence. The same is true when a deviation from the standard of care causes an error that isn't a known risk. Most surgical errors go beyond the known risks of surgery. In other words, they're unexpected.
No two surgeries are identical. Every surgical error (and the underlying cause of the error) is likely to be unique. That said, here are some common reasons for surgical errors:
The types of possible surgical errors are as wide-ranging as the patients and surgeons themselves. Here are a few of the most common:
If you're suffering from the effects of a botched surgery, odds are you're wondering if you have a viable medical malpractice claim. The best way to get the answers you need is by talking to a lawyer who's experienced in surgical malpractice cases.
Almost without fail, surgical malpractice claims are technically and legally complex. They require a sound understanding of state malpractice laws and the special procedures that often are involved in malpractice cases. You can bet that your surgeon will have a lawyer. You should too, in order to make it a fair fight.
Here's how you can find a lawyer in your area who's right for you and your case.