Surgical malpractice arises through surgery mistakes, surgical errors that occur before, during or after a surgical procedure, intraoperative surgery mistakes, medical battery, and failure to obtain informed consent. There are some common elements to these cases discussed below.
Prior to any surgery, the surgeon owes a duty to determine whether surgery is a viable option. Prior to attempting surgery, the standard of care often requires that conservative measures, such as medication, be attempted first. In other cases, surgery is the only option. If a surgeon fails to establish proper indications for a surgery, this is evidence of surgical malpractice.
Prior to any operation or surgical procedure, a physician owes a duty to obtain informed consent. Informed consent is obtained by explaining the indications for the procedure, risks, benefits, and options to the patient. Often, surgeons take the informed consent process for granted. The surgeon will simply ask the patient to sign a generic informed consent form, or it will be obtained by hospital personnel as part of the registration process. Unfortunately, many jurors accept that a signed informed consent form indicates that proper informed consent has been obtained, even though that may not always be the case. Even worse, jurors often excuse postoperative negligence when there is a signed informed consent form, reasoning that the patient accepted all risks, including the surgeon’s negligence in responding to surgical complications. This is contrary to law. When postoperative complications — such as bleeding, infection, perforation, or nerve damage — happen, a prompt response is required in order to prevent permanent harm or death. Delayed diagnosis and delayed treatment of surgical complications is medical malpractice; it is not excused by an informed consent form.
In some instances, the surgeon must prepare for potential complications of surgery, either by giving antibiotics before incision, stopping anticoagulation to prevent complications from bleeding, or starting anticoagulation to prevent a clotting complication.
It is difficult to prove that a surgeon acted negligently during the actual operation or procedure. Typically surgical procedures are not videotaped, so a medical malpractice lawyer is left to review the surgeon’s self-serving operative notes to determine whether the surgery was performed within accepted technical specifications. Of course, the surgeon will write the operative report in a way that is favorable to him or her. Even still, in some cases, poor surgery technique or incompetence can be proven. For example, if structures like nerves and arteries are damaged in the course of a procedure and these structures should have been readily identified during the procedure, the mere act of causing harm can give rise to a surgical malpractice claim.
Finally, during the postoperative period, certain follow up is required by a surgeon. Typically, a surgeon will schedule a follow-up appointment to determine whether healing has progressed properly and to assess for infections or other surgical complications. In some cases, like bariatric surgery, careful postoperative monitoring is required to assess for common complications like nutritional deficiencies, malnutrition, or dumping syndrome. These post-bariatric surgery complications can lead to serious vitamin deficiencies that result in Wernicke’s encephalopathy, blindness, or death. An experienced medical malpractice lawyer, like a medical malpractice lawyer in Cleveland, OH, can investigate claims of surgical malpractice to determine whether informed consent was obtained, whether there were indications for the surgery, whether the surgery was performed properly, and whether the patient was properly monitored after surgery.
Thanks to Mishkind Kulwicki Law for their insight into surgical malpractice lawsuits.