“After all these years, why has patient safety not improved?” So starts an editorial by Helen Haskell, president of the nonprofit group Mothers Against Medical Error. A mother who lost her son to complications of his sunken chest surgery, Haskell published the editorial in 2024 following a Harvard study that year that revealed over a third of surgery patients still experience adverse events. (1)(2)
She stated that the 2024 study follows the 1991 Harvard Medical Practice Study, which stated that over 98,000 Americans died from medical errors. Roughly half of these were attributed to surgical procedures. In fact, she stated that this study paved the way for a wave of medical malpractice lawsuits throughout the decade. (3)
Proving medical negligence as the cause of post-op complications is easier said than done. That said, it isn’t impossible with the right steps and decisions. Here’s how to cope with the aftermath of surgical errors.
Consider Taking Legal Action
To err may be human, but the room for error is extremely narrow for surgeons. For millions of Americans, surgery is their last hope when
noninvasive methods (e.g., medication, skin-deep treatment) have failed. If surgical risks do manifest, the surgeon is obligated to manage them with a proper standard of care.
But going back to the 2024 Harvard study, its authors found that 80% of all adverse events were preventable to varying degrees. Also, half of these medical mishaps were related to surgeries. Most of which involve surgical procedures on the cardiovascular (heart and blood vessels) and gastrointestinal (digestive) systems. (2)
While the numbers show that preventable adverse patient outcomes are highly likely, one still has to prove there is one. Post-surgery complications are inevitable, meaning not all are caused by medical malpractice. In addition, intense emotions prompted by the effects of surgical errors can cloud one’s reasoning.
If you believe you have grounds to
sue for surgery error, it’s best to get help from a medical malpractice attorney. Their expertise in countering defense strategies used by clinics and hospitals will be key in securing maximum compensation. Contact one as soon as you can, as the time for filing a malpractice claim is limited.
Keep All Relevant Records
It’s important to gather and keep all medical records given to the patient throughout their treatment, not just before and after surgery. Tangible documents such as medical bills, pre- and post-op assessments, and witness statements are direct evidence that can support the patient’s claim.
To start with, these pieces of evidence can identify the nature of the error. Studies over the past few decades have found that surgical errors are usually the result of multiple causes, each falling into one of two categories. The first is procedure-based, which includes the following: (4)
Wrong site, procedure, and patient error (WSPE):
This oversight involves performing the wrong procedure (or using the incorrect surgical equipment), performing surgery on the wrong part of the body, or performing surgery on the wrong patient.
Retained foreign body (RFB):
After the operation, the surgical team leaves a foreign object, typically surgical tools, inside the body. The Joint Commission considers retained surgical items sentinel events due to the high risk of surgical site infection.
Mislabeled surgical specimen:
The label on a stored specimen doesn’t reflect the information on the patient it belongs to. Some examples include a lack of sufficient patient safety indicators and incorrect specimen details.
The second is performance-based, in which the error is on the part of any member of the medical staff. Experts believe the following examples are more prevalent in surgeries than procedure-based errors: (4)
Healthcare professional burnout:
Surgeons or members of the surgery team suffer from stressful conditions in the operating room. Burnout greatly affects a healthcare provider’s ability to make decisions and conduct surgical procedures.
Unnecessary surgery:
The surgeon proceeds with a surgical procedure despite less invasive treatments being available (or against medical protocols). Performing one risk to patient harm, leading to additional unnecessary treatment.
Miscommunication:
A lack of coordination and communication among the surgical team and with the involved departments is a major cause of errors, such as administering the wrong drug or not conducting a thorough sterilization of instruments.
Note that some documents may not be provided automatically. In that case, you’ll need to retrieve them by filing a request for access with the healthcare facility where the erroneous surgery was done. Your lawyer can provide a list of the necessary records.
Under the Health Insurance Portability and Accountability Act (HIPAA), a healthcare facility must provide the records
within 30 calendar days of receiving the request. If it can’t, it must explain itself to the requester and can be given another 30 calendar days. Only a single extension can be provided per request.
Obtain an Expert Witness
Of all the pieces of evidence to support a medical error claim, perhaps the most important is a third-party medical expert’s testimony. Preferably, this expert can be in the same field or specialization as the accused. After all, a brain surgeon is a sensible choice for checking for preventable harm in brain surgery.
Because having an expert witness is crucial, medical malpractice lawyers often maintain a network of medical professionals. It falls on them to choose a suitable expert to stand with their client. This is another reason to work with a lawyer.
Experience in writing affidavits of merit and testifying in medical malpractice trials is a big plus. While not all states require filing the affidavits, these experts have an understanding of how courts hear such trials.
An expert’s testimony isn’t legally required to build a strong malpractice claim, but you don’t want to be without one. Expect the accused to build a robust defense, even getting expert witnesses of their own.
Avoid Accepting Early Settlements
A botched surgery’s effects go beyond injury and disease.
- Financial burden: Repairing the damage requires follow-up treatments, putting the patient’s finances under unnecessary and heavy strain.
- Erosion of trust: The patient can feel betrayed by the surgeon (and, to some extent, the healthcare system), deterring them from heeding the surgeon’s expertise again.
- Lost productivity: Being absent from work due to the patient’s condition impacts their source of income. In some cases, they may already have been terminated.
- Reduced quality of life: Depending on the complications, the patient might not be able to perform activities they enjoyed before.
Sometimes, the hospital may try to offer a settlement before lawyers, let alone the court, get involved. However, legal experts advise against doing so, no matter how tempting the offer. The patient can’t take it back once they accept it.
Given the long-term implications of surgery errors, it’s prudent that your party calculates the maximum compensation value possible. Not only should it account for the additional medical cost, but also for lost wages (then and in the future) and other damages. Consult your lawyer about the offer before expressing your intent to accept it.
Conclusion
Surgical errors are mostly preventable, and healthcare professionals should be aware of this. Negligence on their part may result in an adverse event post-op. If you think this is the case, you have the right to file a lawsuit.
References
- “Safety of inpatient care in surgical settings: cohort study,” Source: https://www.bmj.com/content/387/bmj-2024-080480
- “Haskell H. Surgical adverse events in the US,” Source: https://www.bmj.com/content/387/bmj.q2437
- “Goodman B. More than 1 in 3 surgical patients has complications, study finds, and many are the result of medical errors,” Source: https://edition.cnn.com/2024/11/15/health/surgical-complications-medical-errors
- Santos G, Jones MW. Prevention of Surgical Errors [Internet]. PubMed. Treasure Island (FL): StatPearls Publishing; 2023. Available from: https://www.ncbi.nlm.nih.gov/books/NBK592394/
