All surgical procedures have some degree of complications and risk. Even with advances in medicine and patient care, errors due to the surgeon, anesthesiologist, nurse, or another surgical team member are a leading cause of harm to patients. 1 in 18 Canadians experience surgical errors that could have been prevented, including performing procedures on the incorrect body part, person or leaving equipment inside the patient. If an error results from negligence on the part of one or more healthcare providers and causes an unexpected injury, you may be entitled to compensation by filing a surgical error claim.
What is a Surgical Error?
A surgical error is part of the broader category of medical malpractice that refers to a preventable mistake made by a medical practitioner before, during, or after a surgery that causes physical or psychological harm to a patient. Healthcare professionals are required to inform patients of the benefits relative to the likelihood of success and the risks associated with the surgical procedure. This is called informed consent. Surgical errors are unexpected and go beyond the known risks of surgeries. A patient is never asked to consent to a surgical error.
If the surgeon has not properly explained the known risks, or the surgery happened without the doctor getting informed consent, the patient will not be able to make an informed decision about moving forward with the surgery. If a reasonable person would have declined the surgery after being informed of the full nature and extent of the potential errors, there may be grounds to seek legal services for surgical malpractice.
Speaking to a surgical errors lawyer will help you understand if the actions of your surgeon meet the requirements of a successful medical malpractice claim.
Types of Surgical Errors
Although surgical errors are largely avoidable, there are some scenarios that occur more often than others. In some medical malpractice cases, patients can suffer serious injuries, including organ and nerve damage, paralysis, chronic pain, brain injuries from lack of oxygen, amputation, or internal bleeding. These injuries could result in temporary or permanent disability or even wrongful death.
Common types of surgical errors include:
- Foreign objects left inside the patient: If a surgical team member forgets to remove a piece of sponge, gauze, or other materials and surgical equipment, this can cause internal damage as well as infection.
- Incorrect procedure: The wrong type of surgery performed on a patient that does not address their initial injury or illness. This error can cause further complications and health risks.
- Medication errors: Medications may be prescribed or administered before surgery, in operating rooms, or during recovery. If the patient receives the wrong medication or dose, this can cause serious or fatal adverse reactions.
- Contamination: The operating room is supposed to be a sterile environment. If proper sanitization is not followed, patients are more susceptible to infection and other complications.
- Wrong-site surgery: If a surgeon operates on the wrong part of the patient’s body, it can cause unnecessary trauma, amputations, removal of healthy body parts, and other life-threatening consequences.
- Wrong-patient surgery: Performing surgery on a patient who is not meant to have that procedure can cause a delay in correctly treating a medical condition, unnecessary pain, permanent disability, and other serious health conditions.
- Unnecessary surgery: Errors on part of healthcare providers can lead to surgeries that are not needed, putting the patient’s health at risk.
What Are the Causes of Surgical Errors?
Undergoing a surgical procedure can range from simple to complex, all with their own level of risk and recovery periods. If the surgeon, nurse, anesthesiologist, or other surgical team member acts negligently in pre or post-operative care, this can lead to a surgical error that causes the patient to suffer injuries. Despite the inherent risks of surgery, some factors increase the likelihood of a severe error.
Incompetence
Doctors are required to stay up-to-date on evolving surgical procedures and must prove that they have the competent skills required to perform the surgery. If a surgeon performs a procedure that is new or beyond their skill level, there is a great risk of patient injury.
Inadequate Planning
Prior to surgery, the medical team of surgeons, nurses, and other staff require a pre-operative plan that details how the procedure will take place and how to handle issues should they arise. The process should also include reviewing surgical techniques and the patient’s medical history.
Fatigue
Surgeons and medical professionals are required to work long shifts and can be on call throughout the day and night. Depending on the type of procedure, a surgical team could operate on one or a dozen patients in a single shift. Errors are more likely to occur during surgery when one or more members of the surgical team are tired.
Substance Abuse
Due to the demanding nature of their profession, some surgeons turn to substances to help keep them going or deal with stress. Use of alcohol or drugs can impair a practitioner’s judgment and motor skills needed to perform the procedure.
Neglect
Understaffing, overbooking, and long hours all contribute to the larger problem in the healthcare industry. Surgeons may try to rush procedures or operate using limited resources to provide treatment to all their patients, increasing the chance of a surgical error.
Miscommunication
Communication is a vital part of the surgical process. Understanding directions, duties, medication doses, and equipment needed helps ensure that surgical errors don’t occur.
Anesthesia Errors
An anesthesiologist is required to administer the right medication and dose, monitor the patient’s vital signs, and be aware of health conditions and allergies that could cause an adverse reaction. The negative effects of anesthesia errors can range from brain injuries, cardiac arrest, chronic pain, and even death.
Is the Hospital Liable for Surgical Errors?
All medical professionals owe a duty of care to make decisions in the best interest of their patients. If mistakes were made during your operation, you will need to prove that a physician didn’t meet the accepted medical standard of care compared to a reasonably competent physician practicing in the same area under similar circumstances. If the failure to exercise reasonable care causes harm to a patient, liability for surgical negligence can fall on the doctor, surgeon, nurse, or anesthesiologist. In some cases, you may also be able to hold the hospital responsible for surgical errors.
To prove surgical negligence in medical malpractice claims, you (the Plaintiff) must be able to show:
- Breach of Duty: The surgeon failed to deliver care that is consistent with the medical standard.
- Causation: Your injuries are directly related to the surgical error caused by the breach of duty.
- Damages: The injuries you suffered resulted in physical, psychological, or financial losses.
Healthcare practitioners participating in a surgical procedure may not be direct employees of the hospital. In the case where a foreign object is left inside a patient or the incorrect surgery is performed, the individual practitioner would be held liable. Nurses and surgical tech staff are generally employed by hospitals. Any errors on part of a hospital employee, such as informed consent or pre/post-surgical care, would hold the hospital liable for surgical negligence.
Damages in Surgical Error Claims
The issue with surgical errors is that not all are obvious or instant. Some can take months or years for patients to become aware that a surgical error occurred. In the case where a surgeon operates on the wrong body part, the error will be discovered right away. In the case of the surgeon leaving a foreign object inside the surgical site, the patient may not discover the error for months or years until they start experiencing complications.
There is also the possibility that a surgery was not performed correctly, which is not known to the patient until they are in recovery or post-recovery. Although patients are informed about the risks and the post-op process, it can be difficult for a patient to know what is a natural part of recovery and what might be a complication due to a surgical error.
Compensation for surgical errors will depend on the extent of your injuries and damages. If your health declines or you are experiencing adverse effects due to a surgical error, you may be entitled to compensation for the following losses:
- Pain and suffering
- Medical expenses
- Lost wages
- Loss of future income
- Disability
- Scarring
- Disfigurement
- Loss of consortium (the impact an injury has on relationships with a spouse or family member)
What is the Process for Surgical Error Claims?
The time limit to file a surgical malpractice claim is typically within two years from when the error occurred. There are some exceptions to this time limit, including minors, injured victims who lack decisional capacity, and those who could not have reasonably known about the injury been within the two-year deadline.
Your surgical errors lawyer will start to build your medical malpractice case by gathering documents and enlisting the help of medical experts. Some of the standard documents required to start the claim include:
- Medical records
- Financial documents
- Witness statements
- Consent documents
Investigations launched into medical malpractice claims hold healthcare providers accountable for delivering a high standard of care to help reduce the chances of surgical errors. While no amount of money can change what happened, receiving compensation for medical bills, future medical costs, and lost income can alleviate financial stress while you focus on recovering.
If you are someone you know has suffered an injury due to a surgical error, you don’t have to navigate the medical malpractice claims process alone. Contact Valent Legal to book a free consultation with one of our surgical error lawyers in Halifax today. We will discuss your case and guide you through the legal proceedings to ensure that you recover the compensation and justice you deserve.
