Orthopedics refers to a specific branch of medicine that is concerned with correcting medical conditions that may affect a person’s muscles, bones, nerves, and joints. An orthopedist, or orthopedist surgeon, is a medical professional who specializes in orthopedics. Their primary goal is to treat, diagnose, and prevent orthopedic afflictions. They accomplish these tasks by using both surgical and nonsurgical procedures.

Some common examples of orthopedic treatments and procedures include:

  • Hip or knee replacements;
  • Sports injuries;
  • Bone tumors;
  • Osteoporosis;
  • Arthritis;
  • Back pain or spine related issues; and
  • Various other types of injuries.

Orthopedic treatments, especially those involving surgery, can cause further injury to a patient if they are not done properly. In such a scenario, the patient may be able to sue for medical or orthopedic malpractice. This allows them to recover the damages and losses caused by the negligent actions that occurred during the procedure.

Orthopedic malpractice occurs when an orthopedist falls below the professional standard of care when treating, diagnosing, or managing a patient, which then results in an injury to that patient. 

What Types of Injuries Can be Caused by Orthopedic Malpractice?

Orthopedic malpractice can cause many different types of injuries. Some examples of injuries commonly associated with orthopedic malpractice that can lead to long-term or permanent damage include:

  • Operating on the wrong body part (e.g., left leg instead of right leg);
  • Performing surgery on the wrong patient;
  • Failing to accurately diagnose an orthopedic medical condition;
  • Performing the wrong kind of orthopedic surgery;
  • Leaving surgical instruments or medical sponges inside a patient; 
  • Ignoring proper medical procedures regarding sanitation and cleanliness
  • Failing to recognize medical issues that arise post-surgery; and
  • Various other types of negligent conduct.

Additionally, administrative issues may also qualify as orthopedic malpractice. An example of this is where an orthopedist is performing surgery without a valid medical license, or if an injury resulted due to a clerical error made when entering a patient’s hospital records. 

Who Can be Held Liable for Orthopedic Malpractice?

There are several different parties who can be held liable in orthopedic malpractice cases. In general, the facts of a case will usually dictate exactly who will be legally responsible. Oftentimes, it is the orthopedic surgeon who causes the patient’s injuries. For instance, if an orthopedic surgeon left a surgical instrument inside a patient during surgery, then the patient can sue them for orthopedic malpractice.

Doctors and surgeons are not the only parties who can be held legally responsible. Nurses, other medical staff, and hospital organizations can be held accountable as well. For instance, if a hospital consistently loses patient records or a hospital staff constantly makes mistakes diagnosing patients because of widespread clerical errors, then they may be liable for orthopedic malpractice.

In many cases, a mix of different actors might all be involved in the malpractice, or there may be a “chain” of malpractice occurring in the healthcare institution. In such cases, various parties can all be held liable for a single person’s injury. Another concern is where there are systemic violations, often due to issues with institutional policies or overall operational issues. 

Finally, if an orthopedic surgeon knows or should have known that a particular implant brand or medical device causes serious harm to patients, they may be held liable. Additionally, manufacturers of implant products or medical devices can also face lawsuits, but these will most likely be based on a claim for defective design or some other cause of action under products liability law, not medical malpractice. However, an injury claim can often involve multiple legal theories or concepts, which typically require the assistance of a malpractice lawyer to resolve. 

What are the Legal Remedies and Consequences Involved in an Orthopedic Malpractice Claim?

The most common form of damages that plaintiffs to orthopedic malpractice claims receive are monetary damage awards. This award is meant to reimburse the plaintiff for costs related to their injuries caused by orthopedic malpractice. For example, the plaintiff may use the money to pay off hospital bills, pharmaceutical costs, surgery expenses, lost wages, and so on. In some cases, they may also receive damages for pain and suffering. 

Other legal consequences may include suspending or revoking the orthopedist’s medical license, and mandating that a medical facility improve their record keeping policies or health and safety procedures. Such changes can often require a facility to overhaul or rework their entire operational procedures and standards. 

One final thing to keep in mind about remedies for malpractice claims is that the majority of states have statutes that limit the amount of damages a plaintiff can receive. Many states impose damage caps that max out at around $250,000, whereas other states allow the plaintiff to collect a much higher amount before they are restricted. 

For instance, damages for medical malpractice in Wisconsin are capped at $750,000. There are also a handful of states that do not impose damage caps at all. 

If you are unsure about the malpractice laws in your area, you may need to contact an attorney. A malpractice attorney will be able to explain your legal rights under the current laws and statutes in your area. Laws may also be subject to change, so it’s best to seek legal help from a professional if you have any questions or inquiries. 

Are There Any Legal Defenses That Might Apply to Malpractice Case? 

As in any type of injury claim, the defendant party may attempt to raise defenses if they apply to their case. In an orthopedic malpractice claim, the party being sued may attempt to raise defenses such as: 

  • Lack of Proof: If any of the elements needed to prove malpractice are not met, it might be raised as a defense
  • Consent: It could be a defense, depending on the situation, if the patient fully consented to the process involved
  • Contributory Negligence: If the patient somehow contributes to their own injury, it might be raised as a defense in the lawsuit. An example of this where the patient is specifically instructed to follow certain instructions in preparation for the procedure, but knowingly disregards these preparatory steps

Various other defenses may apply. These will depend on the individual facts and circumstances surrounding each case, state law, and other factors. Also, the success of raising a defense often depends on the skill of the attorney(s) involved in the case. 

Do I Need a Lawyer for Help with an Orthopedic Surgery Claim?

Suing orthopedic surgeons for malpractice often requires comprehensive knowledge of the law and familiarity with state court procedures. As mentioned, they can also involve several different parties and actors, who may be liable in different ways. Thus, if you intend to sue your orthopedic surgeon for malpractice, then you may want to consider hiring a local personal injury lawyer before you proceed.

An experienced personal injury lawyer can answer any questions you have about your case, help you gather necessary evidence, and discuss the potential remedies you may be able to recover if your case is successful. Your lawyer can also provide guidance through each step of your case and can represent you in court. If your orthopedic surgeon decides to settle, your attorney can help you negotiate a favorable settlement as well.