When Does a Surgical Error Become Medical Malpractice?

Find out when a surgical error rises to the level of malpractice, why surgical errors happen, and what kinds of surgical errors are among the most common.

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Updated by Dan Ray, Attorney · University of Missouri–Kansas City School of Law

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.

What Is Medical Malpractice?

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

Medical Negligence

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.

What's the Standard of Care?

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.

Did Substandard Care Cause Your Injury?

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.

What is a Surgical Error?

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.

Why Do Surgical Errors Happen?

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:

  • Lack of skill or experience. Maybe your surgeon hasn't done this surgery many times and has yet to develop the skills to do it successfully. Everybody has to start somewhere, and it might be that your surgeon is starting with you. Barring an emergency, you should ask how much experience your surgeon has with your surgery before you agree to the procedure.
  • Insufficient preoperative planning. Your surgeon should be well-prepared to do your surgery. Depending on the procedure, this could include reviewing medical records, X-ray, CAT scan, or MRI films and other diagnostic studies, and preparing for any complications that commonly arise. Nurses, surgical technicians, and assistants must prepare as well, making sure that all necessary equipment is ready and available when needed by the surgeon.
  • Improper work processes. Surgeons are like anyone else: Sometimes they cut corners or take shortcuts, especially when pressed for time. While they might get away with it 99 times out of 100, their luck is bound to run out sooner or later. Shortcuts can be very costly when it comes to surgery.
  • Poor communication. Miscommunication and failure to communicate are among the most common reasons for all medical errors, not just those that happen in surgery. Though hospitals and outpatient surgery centers take extra precautions to minimize these errors, they still happen. Communication failures can have serious consequences.
  • Surgeon and staff fatigue. Perhaps not surprisingly, fatigue is a significant contributing factor in many surgical malpractice cases. Some surgeries—those that are elective and non-urgent—can be planned for normal business hours. But emergency surgeries necessitated by trauma or illness don't follow a convenient schedule. Surgeons and surgical staff notoriously work long, sometimes unpredictable shifts. This results in fatigue. Tired people are more likely to make mistakes.
  • Substance dependency and abuse. Some surgeons turn to drugs and alcohol to cope with the stresses of their work. Left unchecked, substance abuse and dependency almost inevitably lead to errors both inside and outside the operating room.
  • Negligence. Of course, some surgical errors happen because of simple carelessness. Over time, even the most difficult and challenging surgical procedures become part of the day-to-day routine. Due care and rigor are replaced by complacency and even boredom. Careless surgeons, like careless people generally, make mistakes.

Examples of Common 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:

  • injuring nerves or blood vessels during surgery
  • anesthesia errors, like giving too much or too little anesthesia, or failing to recognize and react to anesthesia complications
  • making an incision at the wrong location
  • leaving a piece of surgical equipment like a sponge or an instrument inside a patient
  • operating on the wrong body part, and
  • operating on the wrong patient.

Talk to an Experienced Malpractice Lawyer

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.

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