When Does Surgery Become a Legal Issue? Understanding Surgical Errors

Medical malpractice occurs when a healthcare professional breaches their duty of care, neglecting to provide adequate care to the patient or providing substandard treatment, resulting in injury, harm, or death to a person.

According to the National Library of Medicine (NIH), 75% of medical negligence claims involve surgery, making surgical negligence the most common medical malpractice issue in the US.

We’ll explore some of the most common causes of surgical negligence that lead to legal malpractice claims, including:

• Surgical procedure negligence
• Delaying surgical treatment
• Failure to adequately handle infections during surgeries
• Failure to provide surgical treatment after clinical diagnosis
• Recommending and performing high-risk surgeries casually

1. Surgical procedure negligence

All surgeries entail known complications and risks, and not every negative result will be caused by negligence. Surgical negligence claims are only applied when a complication occurs due to a surgeon’s carelessness and when a surgeon fails to meet the duty of care.

Surgical negligence can occur in several ways—let’s look at a few of the most common.

Incorrect implantation of metal plates and screws

When hardware like metal plates and screws aren’t implanted according to proper standards, it can cause significant harm to the patient, leading to the loss of a limb or body part. For example, if a tooth implant is incorrectly positioned, the patient may face nerve damage, and compromised implant stability can lead to bone loss.

Nerve injuries

Negligence during neurosurgery—such as brain or spinal cord surgery—can cause nerve injuries, impair cognition, cause degenerative weakness, or even paralysis in some areas. For instance, nerve damage during knee replacement surgeries can lead to foot drop palsy. In addition, nerve injury resulting from thyroid surgeries can lead to loss of voice or difficulty breathing.

2. Delaying surgical treatment

Sometimes, patients need urgent, life-saving surgery. If a surgeon delays these surgeries and fails to identify the required procedure, this also constitutes surgical negligence. Let’s clarify through a few examples:

• Example 1: If a patient needs an appendectomy (appendicitis surgery) but the surgeon delays it, the patient can suffer appendix rupture, leading to life-threatening infections.
• Example 2: if a surgeon delays a C-section, it can cause fetal distress, brain damage, or loss of mother and baby.
• Example 3: A delay in aneurysm surgery can cause aneurysm rupture, leading to massive internal bleeding or stroke.

Delays in life-saving surgeries can be very costly for both surgeons and patients. Surgical negligence can endanger a patient’s life—or even end it—which could have otherwise been prevented. In these cases, surgeons and hospital staff are liable for the consequences.

3. Failure to adequately handle infections during surgeries

Patients can develop infections when they undergo surgery—in fact, it’s actually pretty common. Foreseeing an infection and preparing accordingly is part of a surgeon’s training. However, if a surgeon fails to predict an infection and doesn’t manage it correctly, it can become life-threatening and constitute surgical negligence.

Surgeons typically prepare in the following ways to manage and reduce infections during surgeries:

• Sterilizing all surgical equipment
• Having antibiotics available pre- and post-surgery to treat infections.
• Scheduling follow-up visits to examine patient recovery and check if the wound is healing correctly without any infections

Failure to follow these infection prevention standards can cause serious harm to the patient and result in legal claims for medical malpractice.

4. Failure to provide surgical treatment after clinical diagnosis

Although surgery is considered a last resort, it’s offered when there is a risk of severe complications in alternate methods. For example, if natural delivery presents significant risks to the health of the mother and the baby, C-sections may be performed to protect the safety of both. Failing to perform the correct procedure, or delaying a C-section in an emergency, could be considered negligence.

5. Recommending and performing high-risk surgeries casually

On the other hand, if a doctor performs surgery when less-invasive procedures or medical or physical therapy could have worked just fine, this is also considered negligence. Surgeries are complicated and sometimes dangerous—they should typically be performed as a last resort. Let’s take a look at a couple of examples:

• Example 1: A person develops gallstones, and their doctor opts for surgery to remove them when a diet change could’ve potentially cured them. This can be considered surgical negligence because removing the gallbladder can result in lifelong complications and digestive issues.
• Example 2: In some knee pain or osteoarthritis cases, doctors may recommend surgery to replace the knee when physiotherapy, strength training, and lifestyle changes could have alleviated the symptoms and improved mobility. Surgery in such cases results in blood clots, infections, and prolonged recovery times.

What informed consent is

Doctors are required to discuss potential risks and complications with patients before procedures and surgeries, ensuring they are well-informed before making a decision. Patients sign informed consent forms to acknowledge that they are aware of the risks and complications before undergoing a procedure. If complications arise that were discussed and understood, patients generally cannot hold healthcare professionals liable since they consented.

However, if an issue occurs that a surgeon failed to foresee and potential risks of surgery should’ve been communicated but were not, this may constitute surgical negligence. In such cases, doctors can be held liable for the harm caused.

What to do if you suspect surgical negligence

Surgical complications are more common than we are ready to accept. And no matter how careful a surgeon is, mistakes happen. If you believe that you or your loved ones have experienced surgical negligence, you have a right to file a medical malpractice legal claim for the harm caused. You will need a compassionate advocate who understands the different types of errors involved in surgical negligence and knows how to present your case in a court of law.

If you believe you have a legal claim for surgical negligence, contact a Washington, D.C., medical malpractice attorney at Paulson & Nace as soon as possible. Our experienced team has covered many complex medical malpractice cases and always aims to provide the best legal advice to victims. For a free case evaluation, call or fill out our contact form.