No one looks forward to surgery—while the procedure can improve your quality of life or even help save it, the prospect of undergoing a procedure can leave you feeling more than a little anxious. Thankfully, most surgical procedures go off without incident but sometimes errors can occur.
For example, a surgeon can perform the wrong procedure on a patient. Investigating causes of wrong-patient surgeries, and other operating room errors can be a complex process. You must prove negligence and this isn’t always easy.
Common Types of Surgical Errors
Surgical errors aren’t limited to wrong-patient operations. If you’re not sure what this term means, the explanation is both simple and a little frightening. A wrong patient surgery occurs when an operation isn’t performed on the correct individual.
For example, if you’re scheduled to have a blockage removed from an artery but the surgeon performs the procedure on another patient. Wrong patient surgeries can even involve the removal of an organ like a kidney.
The effects of this type of medical error can have a lasting impact on the patient’s quality of life, and sometimes the effects are reversible but that’s not in every case. Some other examples of surgical errors that may lead to a medical malpractice claim include,
Performing the wrong procedure on a patient, which also covers wrong-site operations. The comedian and actor Dana Carvey is a famous example of a wrong-site surgery error. In 1997, a surgeon operated on the wrong artery, causing serious injury to Carvey. Some other examples of wrong-site operations include:
- Injuring nearby organs during surgery
- Nerve damage
- Infections at the surgical site
- Leaving surgical tools and other implements inside a patient’s body. Sponges accidentally left behind are a common example.
- Delaying surgery even though it’s recommended by a licensed healthcare professional
- Anesthesia errors
If a surgeon or another medical professional is knowingly using defective or recalled medical equipment, this may also be considered negligence.
Even if the surgeon isn’t aware the equipment is defective or under recall, you may still be able to file a medical malpractice claim against the hospital or clinic. Liability in medical malpractice claims isn’t always limited to surgeons. Other healthcare providers may be liable and this can include entities like hospitals.
What is Negligence?
We keep mentioning negligence in medical malpractice cases involving surgical errors. The reason for this is simple, if you can’t prove negligence you probably don’t have grounds for filing a medical malpractice claim.
Medical malpractice suits are governed by personal injury law. The cornerstone of any personal injury claim is being able to prove the defendant’s actions are negligent. So, what is negligence? The rule contains four key elements and you must meet each one.
Duty of Care
You can’t claim every healthcare provider you meet owes you a duty of care. Yes, physicians like surgeons take the Hippocratic Oath after graduation and the pledge does illicit the promise to do no harm. However, this doesn’t mean a surgeon giving you random advice while waiting in a check-out line owes you a duty of care.
You must have a patient-doctor relationship. You must also be able to prove the relationship exists. This is usually done with your medical bills, records, and receipts. If the healthcare provider issues a prescription, this can establish a relationship between the two parties.
Breach of Duty
Okay, proving a surgeon willfully or knowingly breached their duty of care can be tough. Remember, some surgical errors are only mistakes and these don’t always meet the requirements to show this element of negligence.
A breach of duty occurs when the actions of the surgeon aren’t considered reasonable. An example is leaving a surgical sponge inside a patient. A reasonable individual will check to ensure all surgical tools are removed before closing a patient up.
However, damage to an organ may not always meet the requirements to show a breach of duty. An artery can be nicked during heart surgery and this isn’t always negligence.
Causation
This element of negligence refers to the cause of your injury and/or other damages. If a surgical sponge is left inside a patient’s body and an infection develops, the medical professional’s error is the direct cause of your injury.
In simple terms, you probably wouldn’t have developed an infection if the surgeon hadn’t left the sponge behind.
Damages
Your damages are any losses you experience as a result of the surgical error. These can include things like your medical expenses and lost income if you miss work.
You may also be able to claim non-economic losses like pain, suffering, and mental anguish. Surgical errors can even impact your quality of life and this can also be listed in your medical malpractice claim.
Before you start listing economic and non-economic damages, you must show these losses are directly caused by the surgical error. Your medical costs are an example. If the surgical error hadn’t occurred, you wouldn’t be facing these expenses.
Don’t Miss the Timeline for Filing a Medical Malpractice Claim in Georgia
All states have timelines, known as statutes of limitations, for filing medical malpractice claims. The timeline varies by state and typically ranges anywhere from 6 months to a couple of years.
If you’re filing a medical malpractice claim for a surgical error, you have two years from the date of the incident. The law also allows the statute to kick in when the error is discovered.
Some surgical errors can take a few days, weeks, or even months to discover. Once the error is identified, the clock starts ticking on your timeline. What happens if you miss the filing deadline? If the statute of limitations runs out, you probably can’t file a medical malpractice claim.
You should also be aware of any caps on medical malpractice claim settlement amounts. Like most states, Georgia does cap some damage awards. Your non-economic damages can’t exceed $350,000 regardless of the actual value of your claim. The only exception is if your claim lists multiple defendants.
If your claim involves more than one defendant, the cap increases to $750,000. To learn more about your potential surgical error malpractice claim, talk to an experienced attorney.
