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Were You the Medical Malpractice Victim of Surgical Error?

Updated February 17, 2022.

You or a loved one has had surgery and the outcome is bad, resulting in significant injuries or even death. Was there surgical malpractice? All surgical procedures involve risks which is why patients given informed consent. When an error goes beyond the realm of accepted risk, the surgeon or hospital may be liable. Surgical malpractice may arise when the surgeon’s treatment rendered to his or her patient falls below the standard of care when compared to other surgeons in the same practice area. Studies show that surgery is the second most common cause for medical malpractice claims against doctors and hospitals overall. Each year in the United States, it is estimated that more than 48 million surgical inpatient procedures are performed, and more than 35.8 million outpatient surgical procedures occur.

The mere fact that a patient suffers a bad outcome from a surgery does not mean that malpractice occurred in the surgery. A surgeon has a legal duty to perform surgery in accordance with the medical standard of care for that surgery. The standard of care is the level of care an ordinary, prudent surgeon with the same level of training would provide. The standard of care encompasses the safety of the patient. Surgical malpractice occurs when the surgeon deviates or departs from the standard of care causing injury or death.


Pre-Operative Care
Pre-operative malpractice can include performing a surgical procedure which is not indicated, failing to obtain appropriate pre-operative medical clearance or proceeding with surgery when it is not safe to do so, for example, if the patient had evidence of an infection on the day of surgery.

Improper Anesthesia
The failure to administer the proper anesthetic medications or in the wrong amount or dose can be malpractice.

Wrong Site Surgery
Surgical malpractice occurs when the surgeon performs the procedure on the wrong part of his or her patient’s body or organ. This error can occur if incorrect information is recorded in the patient’s chart, if the surgeon is distracted or has not carefully read the medical record.

Leaving Surgical Equipment i.e., Sponge, Pads, Instruments
The failure by the surgeon to remove all surgical instruments and equipment from the operative site resulting in a retained foreign object is malpractice.

Nerve Damage

A surgeon has a duty to protect nerves in proximity to the operative site from injury. Injury to a nerve can be malpractice. Nerve damage in a surgery can result from trauma to a nerve due to patient placement, contact with a surgical instrument or compression upon the nerve.

Vascular Damage
A surgeon has a duty to protect vascular structures including arteries and veins from injury during surgery. Damage to a vascular structure which is not part of the surgical plan can be malpractice.

While contracting an infection during a surgical proceeding may be considered a risk of the procedure, a patient can contract an infection if surgical protocols were not followed. Infection resulting from perforation of an adjacent organ can be malpractice. The failure to recognize the signs and symptoms of an infection and render prompt and appropriate treatment can be malpractice.

Organ or Tissue Damage
A surgeon has an obligation to clearly identify an organ or structure which the surgeon intends to cut or remove during the surgery. A surgeon has a duty to protect from inadvertent injury those organs which he or she does not intend to cut as part of the plan for surgery. Where a surgeon fails to correctly identify an organ or structure or misidentifies an organ or structure for another organ or structure, cutting or removing the wrong organ or structure is malpractice. This type of injury can result in serious consequences. Examples include:

  • Lacerated artery during surgery
  • Injured intestine during a C-section or abdominal surgery
  • Injured bowel or common bile duct during gallbladder surgery
  • Cut ureter during an oophorectomy
  • Neurological injury to arm, hand or leg during orthopedic surgery
  • Perforation of the stomach during laparoscopic procedure
  • Injury to an artery during arthroscopic surgery
  • Injury to the rectal wall during a prostatectomy

Failure to Recognize Injury
A surgeon has a duty to inspect the operative site in order to recognize an injury which may have occurred during the surgery. The failure to recognize an intra-operative injury can be malpractice.

Failure to Control Blood Pressure During Surgery
The surgeon and anesthesiologist have a duty to carefully monitor a patient under general anesthesia during surgery. A failure to carefully monitor and control the patient’s blood pressure can result in a drop in blood pressure interfering with the perfusion of oxygen enriched blood throughout the body possibly resulting in an infarction.

Post-Operative Care
A surgeon has a duty to monitor his or her patient following surgery for evidence of an injury which occurred during surgery, stable vital signs and the control of post-operative pain. The failure to do so can constitute malpractice. Examples of post-operative malpractice include the failure to appreciate the significance of symptoms suggesting an injury to an organ or structure, a post-operative infection, low blood pressure or hypotension or pain medication which interferes with a patient’s respiration.

How We Can Help
Lacy Katzen can help you determine if you have a legal case for surgical malpractice. Lacy Katzen utilizes an experienced team of attorneys, legal professionals, nurses and physicians to determine if surgical error occurred. If you believe you or your loved one has been a victim of surgical malpractice, contact us, we would be happy to review your situation.

By Peter Rodgers, Esq.


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