Can You Sue a Doctor for Bad Surgery?

Posted in Medical Malpractice,Personal Injury,Surgical Errors on April 17, 2019

Countless Americans undergo surgical procedures every year. Some of these procedures are to correct serious health problems, such as trauma surgery to remove a bullet from a gunshot victim or extract a tumor. Other surgical procedures are voluntary for cosmetic reasons, such as rhinoplasty and “tummy tuck” procedures. Regardless of why a patient undergoes surgery, the surgical team is responsible for following the standard of care for the procedure and to perform the procedure responsibly.

When You Can Take Legal Action for Bad Surgery

If a surgeon makes a mistake during a procedure but identifies it immediately and does everything possible to fix it, the patient would have a hard time proving medical negligence on part of the surgeon, particularly if the surgeon fixed the error during the procedure and it did not result in any permanent harm. However, if the surgeon failed to meet the acceptable standard of care for the procedure and harmed the patient in any way, the injured patient would likely have grounds for a medical malpractice lawsuit.

Surgeons also have a professional responsibility to fully inform their patients of all associated risks and benefits of a procedure under informed consent laws. These laws ensure a patient can make informed decisions about his or her own healthcare. For example, if a surgical procedure carries a risk of causing a permanent disability, this could be the deciding factor for the patient. However, if the surgeon fails to notify the patient of this risk, the patient may unknowingly undergo a dangerous procedure and suffer permanent damage.

Potential claimants must also ensure they meet the appropriate statute of limitations or time limit for taking legal action for bad surgery. Every state upholds different statutes, but the statute of limitations on a medical malpractice lawsuit is usually two years from the date the malpractice occurred.

Proving Fault for Bad Surgery

Medical malpractice claims are essentially personal injury claims filed against medical professionals, but the process of filing a medical malpractice claim is much more complex than a typical injury claim. First of all, a medical malpractice lawsuit almost always requires a certificate of merit or affidavit of merit from the medical board with jurisdiction over the defendant. The board will review the claim to determine if the plaintiff has grounds for a medical malpractice lawsuit and grant a certificate of merit if so.

Medical malpractice plaintiffs also often require expert witness testimony to proceed with their claims. For example, if a patient plans to take legal action for damages from a botched surgery, he or she should inquire about the situation with an expert witness who has a professional background in a related area of medicine. A claim concerning negligent cancer surgery would require professional insight from an oncologist or a doctor with another cancer-related discipline.

The Standard of Care

“Standard of care” refers to the minimum level of acceptable treatment a patient should receive for a given condition. Medical professionals have a duty to adhere to the standard of care at all times except under extraordinary circumstances, such as a patient being allergic to a primary treatment or not responding to the typical treatment for his or her condition. A medical professional must have a very good reason to deviate from the standard of care.

Expert witnesses not only help support medical malpractice plaintiffs’ claims for damages, but also come into play in medical malpractice lawsuits to determine if a defendant’s conduct was acceptable under the circumstances. Essentially, the expert witness will provide the court with a professional interpretation of the events in question and offer insight as to whether the defendant’s actions were acceptable.

Ultimately, yes, you can take legal action for bad surgery, but you must have suffered some kind of measurable harm or tangible damage to proceed with the claim. You cannot take legal action for a mistake a surgeon immediately fixed, but you can file a medical malpractice lawsuit if a surgeon failed to meet the acceptable standard of care for your condition.