When Are Surgical Errors Considered Medical Malpractice?

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Recently, the National Institutes of Health reported that approximately 200 million surgical procedures occur every year around the world — and that in over 4,000 of those procedures, there are complications caused by surgical errors. While that may not be a lot on a percentage basis, that still leaves 4,000 individuals out there who have been injured unnecessarily as a result of a surgical error. These errors are of varying natures and severities, from unforeseeable errors to those that could be prevented.

For patients who are hurt and sustain an injury by these mistakes, one of the chief questions they have is whether that error rises to the level of compensable medical malpractice. Not all errors fall under the umbrella of medical malpractice. So, how do you know when a surgical error justifies compensation?

Defining Medical Malpractice That Involves Surgery Errors

Although many patients may equate the term “malpractice” with “mistake” or “error,” not every mistake rises to the level of malpractice. In hindsight, a surgeon can make a decision that turns out to be erroneous without necessarily committing malpractice.

This means that malpractice cannot be described accurately as any mistake that causes injury. The presence and severity of an injury play a significant role in determining the value of your compensation award — if you are determined to be eligible for compensation. But suffering an injury does not mean you are automatically eligible.

Additionally, malpractice is not the same as a difference of opinion. If two surgeons reviewing your case disagree on whether your surgeon acted appropriately, then your surgeon may not have committed an act of malpractice.

Differentiating Between Mistakes and Malpractice

To decide whether a surgeon’s error rises to the level of malpractice, lawyers, and judges must consider all of the unique facts of the situation. This includes not only the nature of the procedure and whether injuries resulted but also:

  • The education, background, and skill of the surgeon
  • The novelty of the surgical procedure
  • The presence of established protocols for conducting the procedure
  • Whether unanticipated complications arose that required a deviation from protocols

What distinguishes malpractice from a simple mistake is whether a reasonable surgeon of a similar background and facing the same circumstances as your surgeon would have made the same decision or mistake.

If you could place 100 objectively reasonable and similarly skilled surgeons in the same situation, and the majority of them would not have made the surgical errors that your surgeon made that resulted in your injury, then your surgeon likely committed an act of malpractice.

How to Know if You’ve Suffered a Surgical Error

While determining whether a surgeon’s actions constituted medical malpractice can be a challenge, it’s also not always easy to know that you were the victim of a surgical error in the first place. Some of the first indications that your procedure did not go as planned could be:

  • Unexpected inflammation or infection at the surgical site
  • Pain, redness, tenderness, or heat around the area that was operated on
  • Other physical manifestations, such as nausea, vomiting, dizziness, or weakness
  • A prolonged recovery

It should be emphasized that if you have any signs or symptoms that you are concerned about following a surgical procedure, you should speak with your doctor or qualified healthcare professional immediately. Some surgical errors can be life-threatening and demand immediate intervention.

What to Do If You Believe You Are a Victim of Medical Malpractice

If you suspect you might be the victim of medical malpractice, it’s important to document as many facts about your situation as possible. Keep copies of any pre- and post-operative information you are given by your surgeon or the hospital, including any documents explaining the potential risks, complications, and side effects of the surgery.

You will also want to write down when you began experiencing symptoms or anything your surgeon said after the procedure. If there are visible injuries, you should photograph them on a daily basis.

Perhaps the most critical step in determining whether you have a viable claim is contacting a qualified and experienced medical malpractice lawyer. Since malpractice refers to actions that no other reasonable professional would have made under the same circumstances, you will most likely need to have your case reviewed by an objective and independent medical professional.

Depending on what your attorney says or what your attorney’s consultant says, you and your attorney may conclude from there that you have a valid medical malpractice case.

Speak With a Los Angeles Medical Malpractice Lawyer Today

Victims of surgical errors that rise to the level of malpractice only have a limited time to act. It’s vital to speak with a seasoned medical malpractice lawyer as soon as possible if you suspect you’re the victim of a surgical error.

Schedule your free initial consultation today.

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