What to Do if a Surgeon Makes a Mistake?
By Ben Gobel on December 21, 2022
Becoming a surgeon requires nearly a decade of college, medical school, internship, residency, and specialized training. As a result, they are some of the best-trained professionals in any industry. This does not, however, mean that they are incapable of making medical errors. On the contrary: surgical errors are a common occurrence.
If your doctor made a mistake during surgery, you might be entitled to damages for additional medical expenses, lost wages, and pain and suffering. Contact the Pittsburgh law firm of Ogg, Murphy & Perkosky to discuss your potential medical malpractice claim in a free one-on-one consultation with a medical malpractice attorney.
What is Medical Malpractice?
All doctors and healthcare providers are obligated to provide their patients with the best possible care. Legally, this duty goes beyond just giving their best effort. While they aren’t responsible for guaranteeing outcomes, a doctor must provide care that meets industry standards. In other words, is the care they provided similar to the level of care the patient would have received from other doctors with a similar doctor-patient relationship?
When an operation has an undesirable outcome, an experienced medical malpractice attorney will first ask whether other doctors would have acted similarly. If not, the doctor’s actions in question may constitute medical malpractice.
Medical Malpractice vs. Known Complications
It’s important to recognize the difference between a known medical complication and medical errors. Surgery is complicated and often unpredictable. When a patient’s life depends on the successful outcome of a surgical procedure, there may not be a choice other than to operate, even if there is a high risk of failure. In other cases, the need for surgery may not be as clearly defined.
For instance, a doctor may recommend a medical procedure to correct an issue, but the patient is unlikely to suffer severe consequences if they decline to have the situation corrected. This might be the case with a knee replacement to address osteoarthritis, for example. This condition has many adverse effects, but surgery may not be the best option for all patients.
When recommending surgery, medical professionals are responsible for advising the patient about known complications that could occur, even in the absence of any medical mistake. If the surgery is performed correctly but doesn’t produce the desired outcome and there was no medical mistake, there may not be grounds for a legal claim.
On the other hand, if the doctor made a surgical error during the operation, it cannot be excused simply because they warned the patient that it was a possibility. In this case, the doctor may have opened themselves up to a medical malpractice claim.
Requirements Before Filing a Medical Malpractice Lawsuit
Before a law firm accepts a medical malpractice case, a personal injury lawyer from the firm will have to determine whether it meets the following four criteria:
1. Did the healthcare professional have a duty of care?
All doctors, nurses, and medical providers who treat patients have a duty of care to provide medical advice and treatments that are consistent with the practices of the industry. In some cases, the patient may not have necessarily even agreed to the treatment. For example, consider a situation where a car accident victim with severe injuries is airlifted to the nearest hospital. The patient is not able to accept or refuse treatment. Despite not having patient consent, the surgical team still has a duty of care to the patient.
2. Did the healthcare provider breach their duty of care?
There are many ways a doctor or other medical professional can make a mistake that could endanger patient safety. A delayed diagnosis could cause a successful surgical outcome to become less likely, and a member of a hospital nursing staff could administer the wrong medication. A doctor could perform the wrong surgical procedure, make a surgical error performing the right operation, or leave an implement inside the body during surgery.
All of these examples constitute a breach of duty, but this element alone does not mean that there are grounds for a malpractice suit.
3. Did the breach cause a medical accident?
In order for a doctor’s negligence to be actionable, malpractice attorneys must show that the mistake is the cause of the medical accident. For example, if a doctor makes a mistake and prescribes the wrong medication, they are accountable for any condition the erroneous prescription may have caused. However, if there was no detectable harm, then the case is not actionable.
4. Did the accident result in damages?
For a surgical mistake to be considered medical malpractice, it must result in damages. Damages can include additional medical expenses, lost wages from time missed from work, diminished earning capacity, and pain and suffering.
Pursuing a Medical Malpractice Case
Medical malpractice cases tend to be much more complex than other personal injury cases for several reasons. To begin with, every person’s body is different, which means that two patients with very similar circumstances could have entirely different outcomes, even if they used the same surgeon for the same treatment. Additionally, there are often multiple accepted courses of action for similar conditions, and what doctors consider the best treatment may vary from surgeon to surgeon.
Medical malpractice attorneys will consult expert witnesses to determine whether a mistake was made or not. Even if the potential malpractice was not the result of a mistake, per se, it’s possible that the surgeon or healthcare provider made a recommendation that was outside the normal standard of care.
For example, a surgeon may tell someone seeking medical attention that they require an operation. If complications arose from the surgery, and other doctors with similar training, backgrounds, and experience disagree that the surgery was necessary, the operation may still be considered malpractice, even if no mistake was made and the complications are known.
What Should I Do if a Doctor Makes a Mistake During Surgery?
Under Pennsylvania law, the statute of limitations is two years from the date you discover the medical malpractice. This is a distinct difference from how most personal injury claims usually work, where the statute of limitations counts from the date of the accident. That means you should speak to a lawyer as soon as possible. These cases require extensive preparation from attorneys and their staff.
Additionally, you should retain all medical records pertaining to your claim. Most doctors have an electronic health record or EHR system that attorneys can access if they have your authorization. It may also be in your best interest to keep a journal documenting the times and dates of your ongoing medical treatment. This can be invaluable evidence. If there are visible manifestations of your injuries, photograph them.
Types of Damages You Can Recover
Whether you believe that the hospital, physician, or staff made a mistake that caused harm, they should be held accountable for their negligence. A medical malpractice lawyer can help. In medical malpractice cases, damages generally fall into two categories:
Economic Damages
Any financial costs resulting from a surgical error are considered economic damages. This may include additional medical bills from an extended stay at the hospital, lost wages, the cost of home healthcare if necessary, etc.
Non-Economic Damages
Merely receiving reimbursement for your expenses after a doctor made a mistake is not the same as making a full recovery. For example, if you suffered permanent injury due to medical errors, you should get additional compensation for your pain and suffering. Or if you’ve lost a family member to a wrongful death, the negligent doctor should have to pay for the losses caused by your loved one’s absence. Non-economic damages seek to reimburse you for the harm caused to your life.
Frequently Asked Questions About Medical Malpractice
These are some of the most common questions that victims of negligence ask our attorneys. If you would like to ask specific questions about a mistake you believe your physician may have made, schedule a free consultation at Ogg, Murphy & Perkosky. You’ll have a one-on-one session with a medical malpractice lawyer.
What is a surgical error?
A surgical error is a mistake made by a physician during a medical operation that causes harm to a patient. It can also refer to an operation that was performed properly but was unnecessary, performed on the wrong body part, or performed on the wrong person.
Are surgeons liable for mistakes?
Yes, but that does not mean that all mistakes are actionable. A surgeon’s mistake must have caused harm to the patient, and that harm must have resulted in damages for a doctor to be held liable.
Can you sue for surgery complications?
It depends on whether the complications were avoidable or not. With many procedures, the risk of complications is high. Your doctor does have an obligation to inform you of these risks prior to having you sign a consent form.
What will a medical malpractice attorney need to know during my initial consultation?
In most cases, your lawyer won’t be able to get a comprehensive view of your case until they review your medical records and patient history and speak to an expert witness or two. However, the initial interview is still important. Here are some questions your lawyer will ask to help get the process started:
- Did you seek a second opinion, and was it consistent with the first?
- Did your doctor order tests, and do you have those results?
- Did the doctor offer you alternatives?
- Did they explain the risks before operating?
How much compensation am I entitled to?
Because every case is different, it’s impossible to answer this question about a specific case without more information. However, there are no damage caps on compensatory damages in Pennsylvania.
What are “wrong-site” surgical errors?
This refers to an operation performed on the wrong part of a patient, the wrong side of the patient, the wrong patient, or it was the wrong operation. Over a four-year period, 76% of wrong–site surgeries resulted in either temporary or permanent harm to the patient.
Medical Malpractice Attorney in Pittsburgh, PA
For years, Ogg, Murphy & Perkosky has represented clients in their pursuit of justice against negligent surgeons. We work on a contingency basis, meaning we serve clients for free until the case is resolved, at which point we only collect fees if we win. The statute of limitations goes into effect as soon as you learn of the surgical error. Contact our practice to schedule a free consultation today!