What is a Surgical Error?

One of the most common medical malpractice cases we handle is a surgical error case. This is a case in which some injury occurs while a physician is doing a proper surgery. For example, a surgeon goes in to remove the gallbladder and while he is doing so, he injures some nearby artery or other organ that causes significant harm to the patient. In these cases, we are often involved in a battle over a principle called “accepted risk of the procedure.” In other words, when a patient signs a consent form for a surgery, the law says that they understand that certain injuries might occur during that procedure because any surgery carries certain risks. However, the consent form is not a license for the doctor to be careless, and it is not a shield that protects him from responsibility if he does something wrong. In other words, when the surgeon causes an injury that is outside of the normal accepted risks of the procedure, then he/she must pay money damages to the patient.

In almost every surgical case we handle, the doctor will claim that the injury was a known complication of the procedure, but usually we have the support of an independent surgeon who will say that the injury should not have happened.

The irony in these situations is as follows. When the patient is talking to the surgeon in the office before the surgery, the doctor will usually make it sound like the surgery will be a breeze and there should be no problems at all. However, the doctor often “sings a different tune” after surgery and tries to emphasize that it was a dangerous procedure filled with risks. Our argument is that they cannot have it both ways. If the surgery is filled with risks, then they have an obligation to tell the patient ahead of time what those risks are. So, if you are about to go into surgery, make sure the doctor gives you a full explanation of what the surgery is supposed to involve. If you suffer an injury during the surgery that you were not expecting, we can investigate the case and determine whether the doctor did something wrong. We often find circumstances that lead to a personal injury or a wrongful death case on behalf of the patient or their family.