Although all surgeries involve an inherent risk and many patients sign an “informed consent,” you may still be able to successfully file a lawsuit to recover for a failed surgery that was performed on you. A failed surgery happens when a surgical error occurs.
In other words, failed surgeries are the result of preventable mistakes and result in less than satisfactory results. Failed surgeries often leave patients with pain, inconvenience, and expenses associated with their failed surgery. According to the law of medical malpractice, if a surgical injury or death occurs, and it could have been avoided or was the result of negligence or inattention, then the injured party has the legal right to recover for their injuries.
Although every instance of a failed surgery is unfortunate, only some instances are grounds for legal action. The following are common types of failed surgeries:
- Wrong Site Surgery: This type of failed surgery occurs when a patient's surgery is performed on the wrong body part or organ;
- Wrong Patient: Sometimes a surgeon may operate on the wrong patient. If this happens, often times the actual patient does not receive the surgery they actually need;
- Unnecessary Surgery: Unnecessary surgery occurs when a patient is subjected to an unneeded surgery, which may then result in further injury;
- Infection: An infection occurs when unsanitary surgical instruments are used during surgery;
- Surgical Instruments Left in the Body: This failed surgery occurs when surgical instruments are left inside the body after a surgery has been completed; and
- Nerve Damage/Damage to Internal Organs: This occurs when a surgeon while using an instrument hits or cuts a nerve or organ tissue, which results in damaging the nerve or tissue.
It is important to remember that the mere fact that a surgery failed does not mean that the doctor or anyone is liable for medical malpractice. In order to hold someone liable for medical malpractice you must demonstrate that the medical treatment in question fell below the accepted medical standard of care.
As mentioned above, in order to bring a successful medical malpractice suit on a doctor or hospital due to a failed surgery, you must be able to prove that the doctor’s conduct fell below the accepted medical standard of care for medical malpractice.
Typically, the standard of care is defined as the type and level of care an ordinary and prudent health care professional, with the same training and experience, would provide under similar circumstances in the same community. Often, it is hard to demonstrate that no other reasonable doctor, in a similar situation, would have done what your doctor did.
Thus, in order to demonstrate that a doctor’s conduct fell below the accepted medical standard of care, expert witnesses are often used. Expert witnesses also help demonstrate that the doctor was negligent.
Importantly, most medical malpractice lawsuits are not against hospitals, because most doctors are contracted, and you can’t sue a hospital for a doctor’s treatment area unless the doctor is an employee of the hospital. Therefore, you will typically need to pursue action against the doctor only, unless they are an employee of the hospital. This of course depends on each individual case.
As can be seen, suing a hospital or doctor for medical malpractice requires a lot of evidence. Therefore, it is important to document the events following a failed surgery. Below is a list of information that is useful for demonstrating a 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; or
- Any additional diagnosis following the failed surgery.
Additionally, if you did consult your doctor or physician (or another physician) about failed surgery issues it’s important to note if the physician admits their mistake and offers to remedy it. Generally, doctors will 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.
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 the person did in fact 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 or surgeon exercised their duty of care. Additionally, the doctor who provides the second opinion may be utilized as an expert witness in any medical malpractice lawsuit that may be brought.
As can be seen, failed surgeries often come with extensive medical bills, and may require future medical expenses and follow up surgeries to remedy the original failed surgery. Additionally, injuries also cause patients to take time off from work, resulting in a claim for lost wages.
In some cases the patient’s physical health may never be the same as before. In rare cases, a patient may die as a result of a failed surgery. In such cases, the surviving family members may bring a wrongful death lawsuit against the doctor or hospital.
Filing a lawsuit based on a failed surgery is a legal remedy that seeks to make patients whole again. The process of filing and proceeding with the lawsuit is often a complex process both from a legal and medical standpoint, thus, it is often necessary to discuss the matter with an experienced and knowledgeable medical malpractice attorney.
As noted above, filing a lawsuit based on a failed surgery is a complex matter involving a great amount of proof to be demonstrated on the plaintiff’s (person filing the lawsuit) side. Thus, if you find yourself in a situation where you believe you are a victim of a failed surgery and are trying to recover, then you should immediately consult with an experienced medical malpractice attorney.
An experienced medical malpractice attorney will be able to evaluate your case, help you gather medical records and evidence, hire expert witnesses, and represent you in court if necessary.