SURGICAL ERROR LAWSUITS

The Legal Basis for a Surgical Error Lawsuit

Surgical error lawsuits typically fall under medical malpractice law. To prevail, a patient must show:

1. A Duty of Care – The surgeon or medical team owed the patient a professional duty.

2. Breach of Duty – That duty was breached through negligent or reckless behavior.

3. Causation – The breach directly caused harm.

4. Damages – The patient suffered losses such as medical bills, pain and suffering, or lost wages.

According to a medical analysis published by John’s Hopkins Medicine, more than 4,000 surgical errors occur every year in the United States.  These events, described as “totally preventable,” are referred to by the federal government as “Never Events,” meaning that they should never happen.

However, it has been estimated that surgeons in the U.S. perform the wrong surgery on the wrong patient and leave a retained object in the patient over 20 times a week. These mistakes during many routine operations are often very serious, causing permanent injury in almost a third of cases, and death in almost 7 percent of cases.

Surgical mistakes contribute to other medical errors, which account for more than 251,000 deaths in America each year. According to the Centers for Disease Control and Prevention (CDC), that would make medical errors the third leading cause of death in the United States, underscoring the need for hospitals to make patient safety a priority.

Joe Lyon is a highly-rated hospital negligence and medical malpractice attorney with experience in injuries due to surgical errors.

Mr. Lyon has represented plaintiffs nationwide in a wide variety of medical negligence, wrongful death and injury claims. Together we can make a difference in your life and the lives of others by making medicine safer. For a no-cost consultation, call Joe Lyon.

Common Surgical Errors

Despite the awareness of the frequency of the surgical errors, it has been estimated that surgeons perform the wrong surgery on the wrong patient or leave a retained object in the patient regularly. Unnecessary operations may also be an area of concern.

Though surgery is always thought of as totally necessary, that may not be the case in some hospitals, when medical professionals go through some procedures without a proper cause.

Other types of surgery errors are not as apparent, but the injuries caused by surgical errors are apparent and often require significant compensation to take into account the medical expenses, loss of time, loss of organs, lost wages, and future medical care.

With medical care costs increasing every day, it is imperative that the negligent parties causing the injuries take responsibility for the harms (physical and economic) that they cause.

After an analysis of national malpractice claims, Johns Hopkins researchers identified several types of surgical errors, many of them causing permanent disability or death.

According to statistics from the U.S. Department of Health and Human Services, 60 percent of surgical errors are due to operating on the wrong side of the patient. In extreme cases, the wrong limb has been amputated. Other common errors include:

• Anesthesia error: Anesthesiology Malpractice can be very dangerous, and may result in death if an anesthesiologist is negligent in administering drugs properly during an operation.
• Foreign object left inside the patient: towels, sponges, staples, and other medical materials can be left inside a patient, which can cause infection or perforate tissue and organs.
• Wrong patient surgery: Hospitals may not properly account for patients, and while this sounds like it would be an extreme rarity, wrong patient surgery does occur on occasion.
• Wrong Site Surgery Lawsuits: Many patients enter an operating room expecting to undergo surgery on their left side, and the medical staff performs the procedure on the right side.
• Unnecessary surgery: Doctors and surgeons have become very comfortable with performing surgery, and may do so even when it isn’t necessary.
• Laboratory Malpractice: Hospital Labs may not send the correct test results to a patient, or may mix up samples.
• Performing Wrong Procedure: When a team of staff at hospitals fails to follow guidelines to prevent Never Events, they may perform a wrong procedure, when a different surgery is needed.
• Failure to communicate test results with the patient: Patient Rights may be ignored in some cases, and can result in Medical Malpractice lawsuits.
• Failure to provide informed consent
• Angioplasty Errors
• Failure to recognize a complication during surgery: Surgeons have a duty to not only perform an operation, but also to mitigate risks and recognize issues as they arise in the operating room.
• Using Wrong Medical Instruments
• Surgery Malpractice: Performing a surgery in a careless or unsanitary manner

Surgical Errors & Patient Injury

Surgeons and other medical professionals in the operating room have established procedures, checklists and instrument counts to track surgical items like sponges and other materials used during an invasive medical procedure. Nevertheless, these procedures are not always followed and sometimes fail to be effective, leading to surgery errors and serious patient injuries.

Surgery Error can cause pain, readmission, additional surgeries, abscesses, intestinal fistulas, obstructions, visceral perforations and death. The risk of retention of instruments increases with body mass index of patients.

Surgery errors in hospitals include improper or inadequate protocols that lead to equipment like sponges, towels, needles, instruments, retractors and other small items and fragments of tools in patients.

The most common causes of these incidents are lack of policy and procedures, a failure to comply with existing procedures, failures in communication, hierarchy issues within hospitals and poor staff education and training. The risks involving surgery errors is greater when medical professionals engage in the following negligent behavior:

1. Ignore set procedures & guidelines: Instrument counts should mark the start and finish of medical procedures. Electronic tracking systems are even available to help keep track of sponges and other items but some medical facilities elect not to use this helpful technology.
2. Deviating from procedures: Hasty decisions made because of surgery complications can lead to surgery errors and retained instruments. Retained instruments are four times more likely when the procedure changes unexpectedly.
3. Poor Communication between colleagues: All hospital personnel should properly trained in procedure and communication practices. During procedures, teams of technicians and nurses may rotate in and out of surgery, requiring solid practices.

In many instances, an error in judgment by an operating medical staff can cause permanent issues. There are a number of unfortunate cases in which patients have had perfectly functioning organs removed or damaged. Wrong patient surgery, while not as common as wrong site surgery, has also been known to occur.

A patient is subjected to an unneeded surgery, along with all the complications that accompany surgery, and may have lasting negative consequences. Severe complications can include the following:

•    Nerve damage
•    Stroke or heart attack
•    Revision surgery
•    Post-surgical infection—often due to unsanitary surgical instruments
•    Long-term tissue and organ damage

Surgical Safety Mishaps & Medical Mistakes

A study published in the Journal of the American College of Surgeons concludes: “Serious communication breakdowns occur across the continuum of care, typically result from a failure in verbal communication between a surgical attending and another caregiver, and often involve ambiguity about responsibilities.”

At most medical centers, patient safety procedures like surgical checklists have long been in place to prevent never events, but these efforts are still vulnerable to human error. The mistakes continue to mount, putting more pressure on medical facilities to improve systems and serve the public responsibly.

Traditionally, nurses keep track of sponges by counting them before and after an operation. But sponges can be hard to locate when they are soaked in blood and tucked away in the abdomen, pelvis, thoracic cavity and vagina. Sponges can be lost during emergency surgeries, when there is little time to thoroughly count instruments.

Doctors rely on protocols like counting equipment, but methods are subject to human error. More standardized counting systems involving all members of the team—surgeons, nurses, techs, anesthesiologists, and radiologists—recommend two people count out all equipment and have it verified by a surgeon.

Such systems reduce surgery errors but some Ohio hospitals do not have the same procedure in place. A study found a 93 percent drop in the number of retained sponges at five hospitals that used radiofrequency technology.

Hospitals have begun utilizing X-rays and bar codes to help detect lost material, and radiofrequency detection systems are the most effective way of tracking sponges. Each piece of gauze has a tiny chip sewn into a pocket and personnel can use a wand at the end of a procedure to detect sponge location. The FDA has also warned about an increase in surgical stapler accidents.

Filing Surgical Error Lawsuits

With medical care costs increasing, it is imperative for negligent parties causing serious surgical injuries to take responsibility for the damage inflicted. When taking into account medical expenses, lost wages, and future medical care, injuries caused by surgery errors often require significant compensation. Fortunately, courts have been sympathetic to the victims. Malpractice judgments and claims over the last 20 years due to surgical errors total over $1.3 billion.

In addition to providing compensation to the patients, holding medical professionals legally responsible will force hospitals to improve patient safety. Medical facilities must recognize the gaps in their system and make changes to prevent others from suffering the same medical mistakes.

Medical Malpractice Settlements

Settlements out of court are likely to follow gross medical negligence. Hospitals and their insurance companies do not want litigation to drag on as legal costs mount. In other cases, hospitals will fail to address plaintiffs’ claims and insurance companies will refuse to pay for the injuries their clients have sustained. It is essential in most cases to hire a Surgical Error attorney to work through this tough time.

Also,  good deal of medical mishaps result in a hospital or healthcare provider attempting to remedy the situation themselves, and sometimes in an underhanded way. Hospitals may try to contact an injured patient, and offer to fix their own mistakes, but only if they sign an agreement not to sue the doctor and hospital.

Do Not make any deal with a hospital until you speak with a Medical Malpractice Attorney.

Surgeons and medical professionals have a legal duty to provide a decent standard of care to their patients. An act like leaving a surgical instrument inside a patient’s body is a gross medical error that should never occur. As a result, victims of such surgery error are eligible to be compensated for medical costs, pain and suffering, and lost income during their recovery period.

During an investigation, a medical malpractice lawyer and surgical error attorney may identify a surgeon, doctor, nurse and other medical professional, hospital or clinic as responsible for a surgery error injury.