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 What Is Medical Malpractice?

Medical malpractice occurs when a doctor, other medical professional, and/or healthcare organization falls below the standard duty of care that is required when managing, diagnosing, or treating a patient. This deviation from the standard duty of care required of all medical professionals usually stems from an act of negligence, and results in an injury to that patient.

Medical malpractice law allows an injured patient to bring a claim against a negligent medical professional, generally in order to recover damages for the harms caused by their substandard conduct. Whether a medical professional can be held liable for a patient’s injuries largely depends on the facts of a specific case, as well as the various rules and requirements of medical malpractice laws maintained by each state or jurisdiction.

Some of the most common examples of medical malpractice claims include:

  • Improperly diagnosing or failing to diagnose a patient;
  • Prescribing the wrong treatment or wrong medication;
  • Operating on the wrong body party;
  • Failing to follow-up after a patient receives a serious procedure;
  • Prematurely discharging a patient before they have sufficiently recovered;
  • Leaving behind medical equipment during a surgery;
  • Not providing information or receiving informed consent before a patient underwent surgery; and
  • Inputting erroneous data into a patient’s medical chart.

Medical malpractice liability refers to which parties or organizations should be held legally responsible for a patient’s injuries. Generally speaking, this is the party who breached their duty of care, and was the actual cause of the patient’s injuries. However, determining exactly who was liable can be difficult because medical malpractice liability often involves more than one party.

The organization itself, such as a hospital organization, can also sometimes be held liable for medical malpractice. This is especially true in cases in which a medical organization’s overall policy or quality of care for patients falls below the necessary duty of care standard. Some examples of parties who can be held liable for medical malpractice include:

  • General practitioners;
  • Nurses;
  • Hospitals;
  • Surgeons;
  • Dentists;
  • Psychiatrists;
  • Chiropractors;
  • Gynecologists; and
  • Clerical staff.

What Is Minimally Invasive Surgery?

Minimally invasive surgery can generally be described as any type of operation involving tiny incisions in or near the surgical site, as opposed to creating a large opening in a patient’s body. Minimally invasive surgeries are generally performed using:

  • Robots;
  • Special surgical techniques;
  • Electronic medical devices; and
  • Unique surgical tools, such as a power morcellator.

Under most circumstances, minimally invasive surgeries help patients avoid undergoing major incisions that are commonly associated with standard operations. Patients benefit from a shorter recovery time after the surgery is complete, which can be done on an outpatient basis.

Some other benefits that a patient may experience when electing to get this type of surgery include:

  • A quicker recovery time;
  • Less pain overall;
  • Little to no time spent recovering in a hospital; and/or
  • No scarring, or a minimal amount of scars from the surgery.

What Is Microsurgery?

Microsurgery is another type of minimally invasive surgery. To reiterate, minimally invasive surgery allows a surgeon to use a variety of operating techniques on a patient without causing significant injuries or side effects.

Microsurgery describes surgical procedures which are performed by using an operating microscope. This sort of surgical procedure is used in various type of surgeries, which include:

Because of the complex details involved, microsurgeries can sometimes be intensive, and as such may require great skill to perform. Additionally, newer equipment and techniques can be complicated; this is why microsurgeries can sometimes be associated with various risks of injury or side effects.

Reconstructive microsurgery is the most common type of microsurgery which involves reconstructing:

  • Tissues;
  • Organs; and
  • Skin.

The operating microscope is used in conjunction with tiny instruments in order to repair and align small blood vessels and nerves. Several different types of microsurgery currently exist, the most common of which include:

  • Laser Microsurgery: This surgery involves the use of a microscope and a laser. The laser is used to remove cancerous masses, or to repair organs without making major incisions;
  • Endoscopic Microsurgery: The surgery consists of using a microscope which is mounted to an endoscope. An endoscope, inside a flexible or rigid tube, is inserted into the patient’s body to provide a light source. The light source is then used to transmit images to the surgeon to view via a video screen or eyepiece. This type of surgery is generally used for procedures on the ear canal, lungs, or uterus; and/or
  • Lumbar Surgery: The use of a microscope allows a surgeon to make minor incisions instead of invasive incisions. It also assists the surgeon in removing damaged portions of the spinal disk or bone.

Can Medical Malpractice Occur During Microsurgery?

Simply put, any time that a surgical procedure is carried out, there is a chance for medical malpractice to happen. As was previously mentioned, medical malpractice happens when a medical professional provides negligent care to a patient.

The negligent care harms the patient and causes additional injuries, which results in additional injuries or damages. Some of the most common medical malpractice examples that can occur during microsurgery include:

  • Failure to properly sterilize equipment;
  • Failure to remove an object from the body after the surgery;
  • Improper use of the microsurgery equipment;
  • Disregarding safety rules for operating the equipment; and/or
  • Failure to use proper protective equipment.

Common injuries resulting from microsurgery malpractice can include:

  • Infections;
  • Movement of implants;
  • Torn tissue;
  • Inflammation; and
  • More serious conditions, including failed organs and other internal issues.

What Should I Know About Damages For Microsurgery Malpractice?

There may be a limit on the damages that you can collect in a lawsuit for injuries stemming from a minimally invasive surgery procedure. Whether there is a limit on monetary damages will depend on the individual facts of a case, as well as the laws for damages awards implemented in a particular jurisdiction.

A handful of states will limit the amount of damages that a winning plaintiff can recover in a medical malpractice lawsuit, known as a “damage cap,” which may be used to prevent plaintiffs from filing frivolous lawsuits. They may also be used to protect certain defendant parties from continuously making large payouts.

Another example of when a plaintiff to a minimally invasive surgery lawsuit may encounter a damage cap would be if the defendant can prove that the plaintiff helped to contribute to their own injuries. If the surgery took place in a jurisdiction that recognized pure contributory negligence and the defendant proves that the plaintiff was 1% responsible for causing their own injuries, the plaintiff will be barred from recovering any damages.

In other places, such as those that use modified comparative negligence theories, a plaintiff’s damages award may only be reduced by the percentage in which they are found to be at fault.

Some examples of actions that may result in a damages award being limited or reduced in a minimally invasive surgery lawsuit include:

  • Failing to follow the instructions or warnings provided by a physician before, during, or after the plaintiff’s procedure;
  • Ignoring the directions or commands given by a nurse or another personnel member of a medical facility concerning the plaintiff’s duties to adequately prepare to undergo the surgery;
  • Failing to comply with the post operation plan discussed with their physician; and/or
  • Various other kinds of activities that would contradict the advice of a doctor or other medical personnel involved.

Do I Need A Lawyer For Issues Associated With Microsurgery?

If you were injured during a microsurgery, you should contact a personal injury attorney. Your personal injury lawyer will help you understand your legal rights and options according to your state’s specific laws. Additionally, an attorney will also be able to represent you in court, as needed.


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