A “failed surgery” is a surgery with less than satisfactory results leaving patients with pain, inconvenience, and expense associated with failed surgery. If a surgical injury or death occurs and could have been avoided, or was a result of negligence or inattention, the injured party has the legal right to sue for monetary damages under medical malpractice.

While every instance of this type is unfortunate, only some instances are grounds for legal action. The following are the most common types of failed surgeries:

  • Wrong Site Surgery: Occurs when a patient's surgery is performed on the wrong body part or organ.
  • Wrong Patient: Occurs when a surgeon operates on the wrong patient.  If this happens, often times they do not receive the surgery they actually need.
  • Unnecessary Surgery: Occurs when a patient is subjected to an unneeded surgery.
  • Infection: Occurs when unsanitary surgical instruments are used during surgery.
  • Surgical Instruments Left in Body: Occurs when surgical instruments are left inside the body after a surgery has been completed.
  • Nerve Damage/Damage to Internal Organs: Occurs when a surgeon an instrument hits or cuts a nerve or organ tissue and results in damaging the nerve or tissue.

What is the First Thing You Should Consider After a Failed Surgery?

It is important to document the events following a failed surgery. Below is a list of information that is very useful to demonstrate failed surgery injury:

  • After care/follow up;
  • The moment you felt something was wrong;
  • Details of the pain and symptoms;
  • Any communications with the physician post surgery; and/or
  • Any additional diagnosis following the failed surgery.

Additionally, if you did consult your physician (or another physician) about failed surgery issues it’s important to note if the physician admits to their mistake and offers to remedy it.

Generally, doctors want to help their patients, and if they cause further damages they generally want to immediately help to the best of their ability. If a physician denies any wrongdoing, that is the time to consult a second opinion and/or an experienced attorney.

After a Failed Surgery, Get a Second Opinion

A second opinion in the medical field is often used when a patient is not suffering from serious illness or worsening health, but suspects something is wrong. This is an important step to verify that they did suffer from a failed surgery.

Whether the intent was malicious in any way or not, the main issue in a failed surgery lawsuit is whether the surgical injury could have been avoided if the doctor who performed the surgery exercised his duty of care. The doctor who provides the second opinion may be used an expert witness in the lawsuit.

How to Sue the Hospital and/or Physician for Medical Malpractice

In order to bring a successful medical malpractice suit on a doctor due to a failed surgery, you must prove that the doctor’s conduct fell below the standard of care. This means that a reasonable doctor under similar circumstances would exercise similar conduct in the same situation.

It is often hard to demonstrate that no other reasonable doctor, in a similar situation, would have done what your doctor did. The use of expert witnesses is used to demonstrate that the duty of care was not met, and the doctor may have been negligent.

It’s crucial to determine if the doctor, hospital, or both are liable for medical malpractice. Most lawsuits are not against a hospital because you can't sue a hospital for a doctor's treatment error unless the doctor is an employee of the hospital, and most surgeons are contracted.

If your case is based on medical malpractice provided by an individual doctor, and that doctor is not an employee of the hospital (contracted) then you will need to pursue action against the doctor themselves.

What is the Remedy for a Failed Surgery Lawsuit?

A failed surgery can trigger extensive medical bills, and may require corrective follow-up surgeries which can require the patient to take time off work (lost wages.) In few cases, the patient’s physical health may not be the same as it was before the surgical error, and may never be.

In very rare instances, a patient may die as a result of a failed surgery. In these cases, the surviving family members can bring a wrongful death lawsuit.

A failed surgery lawsuit is a legal remedy that seeks to make patients whole again, but it's a complex process both from a legal and medical standpoint, so it's best to discuss potential lawsuit situations with an experienced medical malpractice attorney.

Do You Need a Lawyer for a Failed Surgery?

There are typically two situations that occur in failed surgery situations. The first is when a physician readily admits their mistake, and wants to immediately correct the mistake as best they can.

The courts are in favor of allowing physicians the opportunity to remedy their mistake.  They may not be as favorable to a patient who doesn’t grant that opportunity. There are some physicians who may get angry and defensive and won’t admit their mistake. In these situations it is important to consult with a lawyer in order to help ensure patients shouldn’t suffer needlessly.

Failed surgery and medical malpractice lawsuits in general are very complex. If you believe you are a victim of a failed surgery it is highly advisable to seek out a Personal Injury lawyer with experience with medical malpractice to help ensure that all rules and processes are followed.