What Compensation Can I Recover for Surgical Errors?

What Compensation Can I Recover for Surgical Errors?

When you sign a release approving surgery, you put your life in your surgeon’s hands.

You trust your doctor because you have no choice. You can only hope that you’re not lying there, unconscious and vulnerable, when they have an off day. Surgeons don’t come to work planning to make surgical errors. Like all humans, they still make mistakes on the job. As a trusting patient under your physician’s care, you sometimes deal with the consequences.

When a doctor opens up a patient’s body, infection sometimes enters and thrives. While operating, doctors accidentally nick their patients’ bowels and puncture their organs. When they close up after surgery, they sometimes leave sponges or implements inside.

Often, doctors commit minor surgical errors that cause minimal patient harm. Sometimes, their error produces a “reportable event,” an unintentional but serious injury that leaves a patient struggling to survive. When that happens a medical malpractice lawyer near you can help recover the compensation you need.

How Do Serious Reportable Events Occur?

Nearly two decades ago, Dr. Ken Kizer of the National Quality Forum specified certain medical mistakes as never events. The term describes medical errors so egregious, they should never happen. Some medical professionals still use the term. Others prefer to call them “reportable events.” Both expressions describe seven error categories and approximately 29 events that occur more frequently than they should.

The Surgical and Procedural Events category encompasses five types of reportable incidents:

  • Wrong Body Part: A surgeon mistakenly operates on the wrong limb, tumor, or side of the body.
  • Wrong Patient: The doctor performs an invasive surgery or procedure on the wrong patient.
  • Wrong Surgery: A doctor operates on the right patient but performs the wrong surgery or invasive procedure.
  • Unintentional Retention: The surgical team leaves an implement, sponge, or other foreign body inside the patient.
  • Death during or immediately after a surgery or procedure: These incidents usually involve an American Society of Anesthesiologists Class I patient. The ASA describes a Class l patient as healthy, non-smoking, with minimal alcohol use.

These never events describe worst-case scenario surgeries. Doctors commit many other types of surgical errors that cause varying levels of damage.

If Your Physician Makes a Surgical Error

Unless your surgeon complies with a legal or ethical requirement, he won’t necessarily tell you when he makes an error. Some state laws compel medical professionals to reveal potentially harmful events. American Medical Association Code of Ethics, 8.12 considers error notifications a “fundamental ethical requirement.”

Still, as the Agency for Healthcare Research and Quality Patient Safety Network explains, doctors have customarily avoided uncomfortable disclosures. Hospitals traditionally assumed a “deny-and-defend” posture.

Despite ethical and legal encouragement to disclose mistakes, some doctors still avoid revealing surgical errors. They don’t usually ignore the errors or pretend they never happened, they just keep the knowledge to themselves. They sometimes help patients recover by providing additional care without explaining why.

When an error comes to light, a doctor must deal with the consequences.

  • If a doctor committed previous surgical errors, an additional error could cost him his license.
  • A patient might file a malpractice suit that ties him up in the legal system.
  • Admitting a surgical error tarnishes a doctor’s reputation.
  • Some institutions self-insure their coverage. Claim payments come out of their own funds.

Disclosure Attitudes Are Shifting

An anti-disclosure policy is inherently deceptive, but that tradition is gradually changing. More hospitals have adopted what PSNet calls a “communication-and-response” approach. Their article, Disclosure of Errors, discusses a Journal of American Medical Association survey of 2637 medical professionals.

The poll revealed what doctors deem the best disclosure strategies:

  • 56 percent of doctors believe in partial disclosure: revealing the event but not the error.
  • 42 percent believe in full disclosure: revealing the incident and the error.
  • 3 percent believed in no disclosure: no information about the event or error.

The Burden of Revealing Surgical Errors Remains With the Patient

As PSNet points out, a disconnect often exists between what medical professionals believe and what they do. Physicians sometimes avoid full disclosure by explaining mistakes with “carefully chosen words.”

Their disclosures don’t always address the issues or the blame. As an injured patient, that places you in a critical position.

You might never know what happened unless you take steps to find out.

  • Pay attention and ask questions: Pay attention to your post-surgical symptoms. If you feel your surgery was problematic or your recovery is difficult, you could be recovering from a surgical error. If your physician doesn’t voluntarily address your concerns, ask questions and independently seek the answers you deserve.
  • Look for a history of prior errors: Some doctors make the same or similar surgical errors more than once. If you suspect a problem, check the National Practitioners Data Bank. This government website tracks healthcare professionals. Their database reveals instances of discipline, suspensions, and license revocations of physicians across the country.
  • Ask to review your medical records: In most instances, you have a right to obtain copies of your medical records. Of course, a physician might alter the content, but some states have laws forbidding this practice.
  • Ask about Critical Incident Reporting System records: Many hospitals maintain a Critical Incident Reporting System (CIRS). Any employee can file an anonymous report when they witness an adverse event. CIRS availability varies by institution. Depending on how a hospital produces and categorizes event reports, they may be or may not be deemed privileged and undiscoverable.
  • Contact a Medical Error Attorney: When you have questions about your doctor’s professional conduct, a surgical error attorney helps you find the answers.

Do You Need a Medical Error Attorney?

If your doctor caused unintended injuries due to a surgical error, you may have a legal right to recover damages. In filing your surgical error claim, you must comply with your state’s formal malpractice laws and procedures. This often requires that you produce a medical expert and prove your physician acted negligently and/or outside of the standard of care.

If you believe you have a valid claim, consult with a surgical error attorney as soon as possible. Your initial appointment is a complimentary, informative consultation. You simply talk to a surgical error attorney and learn more about your legal options.

William B. Kilduff


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