A doctor who fails to properly perform surgery, such as a hysterectomy or microsurgery, can be sued for medical malpractice. To prevail, the patient must prove that the doctor’s conduct fell below the applicable standard of care and that shortcoming harmed the patient.
Standard of Care in a Medical Malpractice Case
Surgeons, doctors, and other medical professionals are required to exercise the skills and knowledge normally possessed by members of the medical profession in good standing in similar communities.
Proving that a surgeon’s conduct fell below the standard of care can be difficult. Medicine is extremely complex because there are often multiple approaches to solving the same problem and reasonable minds can differ as to which approach is best, especially when it comes to pediatrics.
The patient must also prove that the surgeon’s failure to live up to the standard of care caused the patient actual harm. This can be tricky because the patient was likely injured or ill to begin with when they sought medical assistance.
Examples of harm to the patient include:
- Wrong-site surgery
- Unnecessary operations
- Leaving foreign objects in the patient’s body after surgery, such as leaving gauze in a patient's abdomen after a myomectomy
- Aggravating the condition rather than correcting it, which is a problem with power morcellation
- Failure to properly monitor a patient during or after surgery
- Failure to provide adequate post-operative care
Waiver of Right to Sue
Surgeons are required to obtain informed consent from patients. Often they will also have patients sign contracts including a clause waiving the patient’s right to sue if the surgery does not go properly. By signing the waiver, the patient no longer has the right to sue and usually cannot recover any compensation in court.
What if I Want to Sue My Doctor Even Though I Signed a Waiver?
A waiver of the right to sue usually only covers harm to the patient that is beyond the doctor’s control. Surgery always comes with a risk of complications. Sometimes things do not go as planned and it is not the doctor’s fault. The waiver protects the doctor when he or she is not at fault for the surgery failing.
However, if the surgery failed because the doctor failed to exercise the appropriate level of care when performing the surgery, the waiver does not apply and the patient may sue for medical malpractice.
It is important to seek legal assistance if you have signed a waiver and wish to sue. An attorney will be able to tell you if your injury is covered by the waiver and, even if it is, might be able to propose another course of action to help you recover.
Do I Need a Lawyer Experienced with Medical Malpractice?
If you or a loved one has been injured by medical malpractice, you should speak to a personal injury attorney immediately to learn more about the value of your case and what types of recoveries are available to you. It is important that you talk to an attorney as soon as possible as sometimes there are statutes of limitations for medical malpractice cases depending on what state you live in.