A failed surgery is one in which a surgical error was made. A surgical error is a mistake made during surgery that could have been prevented. There is some risk inherent in any surgery, and patients typically sign an informed consent form acknowledging that they are aware of the risks of surgery. Errors that lead to a failed surgery are those that are beyond what a patient knew were possible before agreeing to the procedure.

Failed surgeries often leave victims with pain, inconvenience, and financial costs associated with the surgical error. Medical malpractice law states that if an injury or death occurs because of a surgical error, and the error was caused by negligence or inattention or could have been prevented, then the victim can file a surgery complications lawsuit to recover damages.

Some examples of surgical errors that cause a failed surgery include:

  • Wrong site surgery, in which the doctor performs surgery on the wrong part of the body.
  • Wrong patient surgery, where the surgeon operates on the wrong person, often meaning that the patient who needed that particular surgery did not get it.
  • Damage caused by surgical instruments or tools being left inside of the body after surgery is completed.
  • Anesthesia errors, where either too much or too little anesthesia is used.
  • Injuries to nerves or other internal organs when the surgeon causes damage with their instruments.
  • Infection caused by instruments that were not cleaned or sanitized properly.
  • Unnecessary surgery that a patient did not need and ended up harming them.

Are Surgical Errors Considered Medical Malpractice?

Not all failed surgeries are medical malpractice. For it to be considered medical malpractice and to find someone liable, a surgical error must have been caused by a medical professional’s actions falling below the accepted standard of care. A medical professional in the same specialty as the doctor accused of malpractice will typically have to testify that the defendant’s actions or inaction breached the standard of care.

Medical malpractice is a lot more broad than just surgical errors. Surgical errors are just one form of medical malpractice. Other medical malpractice claims might result from the following:

  • Misdiagnosis
  • Delayed diagnosis
  • Failure to treat
  • Birth injury
  • Medical device liability

How Do I Prove Medical Malpractice?

There are several elements to a medical malpractice claim. A Plaintiff must prove all of them to be successful and recover damages.

  1. Doctor-Patient Relationship: You must have had a relationship with the doctor you are suing. You cannot sue a doctor you overheard giving medical advice in a social setting. It must be someone who was in a position to actually be treating you.
  2. Negligence: The doctor was negligent, or failed to meet the standard of care for a physician in their specialty. The doctor caused you harm because they did not perform in a reasonably skilled manner.
  3. Negligence caused the injury: You must prove that the doctor’s negligence was more likely than not the cause of the injury.
  4. Damages: Even if a doctor’s actions fell below the standard of care, they are not liable if they did not cause you any harm. Damages might include physical pain, mental anguish, additional medical costs incurred because of the injury, or lost wages due to an inability to work.

A successful medical malpractice claim will be supported by strong evidence. One of the most important pieces of evidence will be the patient’s medical record. It will show their condition before the failed surgery or other alleged negligence, as well as any diagnoses or treatment received.

Other evidence will include documentation of the doctor-patient relationship, such as paperwork in your medical record showing they diagnosed or treated you. In order to show that the doctor was negligent you will need expert testimony that the treatment fell below the standard of care.

Can I Sue a Doctor for Failed Surgery?

Many doctors are not actually employees of the hospital where they perform surgeries. Instead they are contractors who have privileges to treat patients and perform surgeries at one or more hospitals. Therefore you cannot sue the hospital for medical malpractice or failed surgery, only the doctor. If the doctor is an employee of the hospital you can include the hospital in your lawsuit.

Some health care providers require that any legal disputes be handled through mandatory arbitration. Arbitration is a method of alternative dispute resolution that uses a neutral third party arbitrator or panel of arbitrators to decide the case rather than the court system. The parties present their case in a similar way by submitting evidence and calling witnesses, but there is no judge or jury; just the arbitrators. Some arbitration is binding, meaning that the parties cannot file their claim with the court if they are not happy with the decision following the arbitration.

How Long Do I Have to Sue a Doctor After Surgery?

You only have a limited time in which to sue for a failed surgery. The statute of limitations for a medical malpractice claim varies from state to state, however the clock typically starts running as soon as you know (or should have known) that you were harmed. Each state law has its own nuances and exceptions, so it is very important that you know the filing deadlines in your state.

It is very important to file as soon as the harm is discovered so that you do not miss your chance to recover damages for your injury. One argument the doctor and their attorney might make is that you knew of the injury or should have known of the injury for much longer, meaning that you should have filed the claim sooner. In many states the statute of limitations is only two years, so time is of the essence.

What Should I do First after a Failed Surgery?

There are some important steps you should take when suing after surgery. First, communicate with your physician and give them the opportunity to fix their mistake. Be sure to document any symptoms, pain, additional appointments, and costs associated with the harm you allege. Keep detailed records and notes of all conversations with your doctors. Document the moment you knew or suspected something was wrong.

If you suspect something went wrong during your surgery, and you are physically able to, an important step is to get a second opinion from another physician. Another physician may be able to provide guidance regarding whether the first doctor was negligent. They may also be an important expert witness if the case proceeds to trial.

What Remedies are Available for Failed Surgery Lawsuits?

The goal of any award following a successful medical malpractice or failed surgery lawsuit is to make the plaintiff “whole” again. Plaintiffs may recover compensatory damages for the following

  • Lost wages due to being unable to work.
  • Additional medical bills.
  • Pain and suffering.
  • If the patient dies due to the failed surgery their families may file a wrongful death suit and be awarded monetary damages.

Punitive damages, intended to punish, are available if it is found that the harm was intentional.

In some states, awards for non-monetary damages (such as pain and suffering) are capped at a certain amount. For example, in Florida a Plaintiff can receive up to $1 million dollars for non-monetary damages.

Should I Hire an Attorney for Help with a Failed Surgery Lawsuit?

If you think you have been injured because of a failed surgery you should consult with a personal injury lawyer. An experienced attorney can review your medical record and the facts of your case and give you advice regarding filing a claim for medical malpractice. It is important to consult with an attorney as soon as you know you have been harmed so that your claims filed before the statute of limitations has run out.