Surgery can heal trauma and certain medical issues, but unfortunately it isn’t always safe. During or after some surgeries, patients can suffer injuries.
Surgical complications can occur if procedures are carried out in a negligent manner. Examples are operating on the wrong area of the body, postoperative hemorrhage, leaving an object inside the body post-surgery, and careless post-surgical observation. Keep in mind that not all surgical complications amount to medical malpractice but are rather dependent on the actual circumstances.
A 2023 study published in The Joint Commission Journal on Quality and Patient Safety reviewed 68 closed malpractice claims involving wrong-site surgery over a seven-year period. Failure to follow policy or protocol contributed to 83.8% of the claims.
If it can be determined that a surgical error resulted from negligence, some patients choose to file a surgical error lawsuit to cover any resulting damages.
Identifying, documenting, and investigating surgical errors empowers patients to easily recognize instances in which unforeseen postoperative consequences demand greater investigation.
Here’s a detailed run-through of what happens when errors do occur during a procedure.
Complication or Mistake?
Not all negative consequences after the operation indicate malpractice. As flawless as surgery can be, there are certain risks like blood loss, infection, blood clotting, and slow wound recovery that can occur during and after surgery. This is why the informed consent forms note the risk of such complications.
Liability, as it relates to healthcare, is first and foremost concerned with distinguishing the difference between a foreseeable hazard and negligent medical practices. To make this distinction, one must evaluate the practices and procedures followed by the doctor. Was the physician practicing within accepted standards of care? Were they practicing negligently? These questions help separate a known risk of treatment from a breach of the standard of care.
The analysis should usually be done by a team of medical experts, as the patient lacks the appropriate credentials and documentation for it.
The process starts with an evaluation of the case followed by medical experts reviewing and compiling information. Legal action is then initiated, followed by the discovery process and negotiation. The process can often take years to resolve.
The Errors That Should Never Happen
Certain types of surgical errors have their unique names.
According to AHRQ, the National Quality Forum has termed wrong-site, wrong-procedure, and wrong-patient surgeries “never events.” The Joint Commission refers to these instances as “sentinel events,” which means that such errors indicate serious safety problems within the system.
Hospitals use certain precautions to guard against such incidents. The Universal Protocol by the Joint Commission advocates marking the surgical site along with a time-out before the surgery, where all members of the team verify the most important aspects of the process.
Communication issues have repeatedly been cited as a root cause in analyses of these events, and several errors have their roots before patients enter the operating room.
Hospitals also face financial pressure to prevent these errors. Healthcare providers have borne the cost of wrong-site, wrong-patient, and wrong-procedure surgeries since 2009, when Medicare stopped paying for these procedures and related services during the same hospitalization.
Patients with medical malpractice claims in the New York area may seek help from a personal injury lawyer in the Bronx. A lawyer can help a patient manage complex legal and medical issues and negotiations, which may increase the compensation received.
Warning Signs After Surgery
There will be pain and fatigue during recovery, and it may sometimes be hard to separate the pain and problems from normal.
A surgical site infection, as the CDC calls it, is an infection that occurs at the site of the surgery. The surgical site infection can cause redness at the site, cloudy fluid, fever, and even pain.
An infection alone is not proof of malpractice. The critical issue then is how much time it took to realize there was an infection and to act upon it.
What a Claim Usually Involves
Surgery documentation plays a large part in surgical malpractice. Each surgical case has an operative note, anesthetic note, nursing note, imaging results, and a discharge note. Each of these documents forms a different part of the surgery’s timeline.
In this context, the role of an expert witness becomes more defined. A competent, well-qualified physician in the relevant specialty assesses the quality of care that was provided. The physician offers an opinion on whether there was any negligence or lack of reasonable care, based on existing accepted practices of medicine. Other rules regarding time limits to initiate a lawsuit, the procedure to give notice, and even filing vary among different jurisdictions. Some states allow as little as one year to file.
The risks of surgeries vary. All surgeries carry some degree of risk, even if care is provided by competent individuals. Surgery often causes trauma. These injuries may amount to malpractice depending on whether the care team breached the standard of care. Documentation and the care team’s response help show whether harm was an expected result of surgery or the result of negligence.