Last Updated on February 29, 2024

Surgical Errors and Medical Malpractice: Can You Sue?

The Centers for Disease Control and Prevention (CDC) has reported that medical errors have been the fourth leading cause of U.S. mortality in 2021 – as cited in a recently published study on surgical error prevention. With the issue coming to light in 1999, modern healthcare systems have since been designed to decrease and mitigate adverse results from medical malpractices.

Various institutions have also been established to help foster a culture of safety within the healthcare system. They emphasize overcoming errors by improving medical systems and standards. Entire healthcare teams must work together to ensure that these systems and standards are upheld.

Even though these systems have been improved over the last few decades, medical malpractice still very much occurs today. Mistakes can happen before, during, and after surgery. We advise that you consult legal professionals as soon as possible to ensure that your claim is within the New York Statute of Limitations (as these are drawn differently from case to case).

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What are Surgical Errors?

Surgical errors are defined vaguely in the field of medicine. Overlaps and correlations are the biggest challenges in categorizing these medical malpractices. As of today, medical errors have two major types:

  1. Errors of omission –  These refer to surgical negligences wherein your doctor did not act accordingly. Essentially, they are measures the surgeon should have taken but failed to.
  1. Errors of the commission These refer to surgical negligence wherein your doctor took further incorrect actions. Essentially, they are additional measures that cause you harm.

On the other hand, common surgical malpractices observed can be categorized into the following:

ExamplesPotential Complications
Retained Foreign BodiesAccidentally leaving surgical sponges, medical instruments, or miscellaneous items inside a patient. Infection
Bowel obstruction
Perforation
Sepsis
Mislabelled Surgical SpecimensTissue or organs removed during surgery are incorrectly or ambiguously labeled.This leads to problems with pathology analysis and diagnosis and could result in improper treatment.
Wrong-Site SurgerySurgery was done on the wrong area of the body, like operating on the left knee instead of the painful right knee.This results in unnecessary surgical trauma, and delayed treatment of the actual problem area.
Wrong-Procedure SurgeryPerforming a different procedure than intended, like a biopsy instead of removing a tumor.This causes diagnostic delays, the need for additional procedures, and disease progression.
Wrong-person SurgeryOperating on the wrong patient, endangering two patients at the same time. This poses infection risk, delayed treatment, and psychological distress.

In 2023, there was a total of 7,275 medical malpractice payments in the U.S. – 865 of which were made in New York. These compensations amounted to $416.23 million for New York state alone. The average compensation for a medical malpractice claim in New York was $481,191 for 2023.

Preventing Common Causes of Surgical Errors

Systemic issues in medical facilities play a major role in these errors. Miscommunications, outdated protocols, insufficient training, and surgeon burnout – are some issues that lead to surgical errors. By harming their patients, responsible practitioners effectively lose public trust. Impending legal action and a negative image among peers further aggravate the situation for practitioners.

Here is the surgical safety checklist provided by the World Health Organization (WHO). In the U.S., The Joint Commission has also come up with universal protocols that cover surgeries and other medical procedures. 

Establishing a Claim Against Malpractice

There are four key elements that you need to legally establish before a medical malpractice claim is considered valid. These four key elements are:

Duty of Care - Was there an appropriate doctor-patient relationship?
Breach of Duty - Did your doctor fail to uphold their legally sworn responsibilities?
Causation - Did your doctor’s shortcomings directly cause you harm?
Damages - What did their malpractice cost you (financially, medically, emotionally, etc.)?

Extensive investigation is needed to establish these elements. Look to enlist experienced medical malpractice lawyers when strengthening and establishing your claim. It is also important to note that pieces of evidence (medical reports, billing statements, facility policies, etc.) are only admissible in court if acquired by a legal counsel. 

Your lawyer must also negotiate and discuss a settlement with the defendants. Successfully doing so would forego trials altogether. About 90% of medical malpractice claims end in an out-of-court settlement.

Speak to a Surgical Malpractice Lawyer Today

At the Porter Law Group, we help you get the accountability you deserve. Medical malpractices risk the well-being of many patients annually and should never be overlooked. We do our best to safeguard your family’s best interest.

If you or someone you love has suffered because of surgical errors, please reach out to us for a no-obligation, free case consultation. Call us at 833-PORTER9 or send us a message at info@porterlawteam.com.

Written By
Michael S. Porter
Personal Injury Attorney
Originally from Upstate New York, Mike built a distinguished legal career after graduating from Harvard University and earning his juris doctor degree from Syracuse University College of Law. He served as a Captain in the United States Army Judge Advocate General’s Corps, gaining expertise in trial work, and is now a respected trial attorney known for securing multiple million-dollar results for his clients while actively participating in legal organizations across Upstate NY.
Legally Reviewed on February 25, 2024
Eric C. Nordby
Personal Injury Attorney
Eric, with nearly three decades of experience in personal injury litigation, holds a law degree with honors from the University at Buffalo School of Law and a Bachelor's Degree from Cornell University. His extensive career encompasses diverse state and federal cases, resulting in substantial client recoveries, and he actively engages in legal associations while frequently lecturing on legal topics.
This Article Was Professionally Reviewed
This page was Legally Reviewed by Eric C. Nordby on February 25, 2024. Our experts verify everything you read to make sure it's up to date. For information on our content creation and review process read our editorial guidelines. If you notice an error or have any questions about our content please contact us.
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