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Posted by Charles Gilman on

Surgery is always something to be cautious about. There are always stories of people going in for a routine surgery who end up injured, disabled, or dead. There are always risks of surgery, even for common outpatient procedures. It is important for patients to be aware of the risks of surgery and talk to their doctor before undergoing any surgical procedure. 

If you do go through surgery and suffer an injury after the procedure, you may have a medical malpractice claim. A medical malpractice lawsuit can help injury victims recover financial compensation for their medical injuries, lost income, pain, and suffering. 

If you want to know if your injuries were caused by medical negligence, talk to an experienced medical malpractice law firm for legal advice. Contact Gilman and Bedigian today online or by phone at 800-529-6162.  


According to a study in the National Library of Medicine, at least 4,000 surgical errors occur each year in the United States. However, the numbers may actually be much higher. There may be thousands more surgical errors that are never reported as errors or passed off as a risk of surgery. 

The study actually found that many of the errors are more common before and after the surgical procedure instead of happening in the operating room (OR). Some of the causes of surgical errors include lack of training, lack of standardized rules, communication gaps, unreliable medical protocols, rushing, lack of rest, and human error. 

Risk factors for surgical errors can include cultural problems like the failure to question a surgeon by junior staff. Other risks include digital device distraction, incomplete imaging information, poor staffing, and time pressures. 

A national medical malpractice insurance carrier analyzed malpractice claims from 2014 to 2018. According to the report, errors during surgery were the second leading reason behind medical malpractice claims. Some of the most common types of surgical errors include: 

  • Wrong site surgery
  • Wrong procedure surgery 
  • Wrong patient surgery
  • Leaving a foreign object inside the body
  • Unnecessary surgical procedures
  • Surgical delays
  • Robotic surgery errors
  • Anesthesia errors
  • Surgical infection errors
  • Timely response to complications during surgery

These surgical errors can lead to injuries ranging from minor and temporary to fatal medical accidents. When a patient suffers a medical injury caused by a surgical error, they may require additional medical treatment, care services, future medical needs, workplace accommodations, and changes to their lifestyle. It is not fair that the injury victim has to bear the cost of these injuries for something that was not their fault. 

This is how a medical malpractice lawsuit can help surgical injury victims deal with their damages. A malpractice claim can include a demand for damages to cover the costs of the injury, including: 

  • Medical bills
  • Lost income
  • Future healthcare needs
  • Loss of earning capacity
  • Emotional distress
  • Pain and suffering
  • Loss of enjoyment in life

A medical malpractice case may also be just what the hospital or healthcare industry needs to make changes to their patient safety policies. It is a shame that it takes an innocent person suffering an injury but the costs of a malpractice claim can motivate the medical industry to take steps to protect other patients from similar accidents. It can also stop negligent doctors from injuring other patients caused by their dangerous practices. 


Wrong site and wrong side medical errors are some that are the most baffling for regular patients. How could a surgeon operate on the wrong side of the patient or the wrong area? If you go in to have your appendix removed but wake up without a kidney, how badly did things go wrong?

For example, if a patient has a diseased left kidney and goes in for surgery to have the left kidney removed. After the patient goes under anesthesia, the patient wakes up and notices pain and a bandage on their right kidney. The surgeon made a mistake and removed the right healthy kidney but left in place the left diseased kidney. This means the patient may be left with no healthy kidneys and may require dialysis for the rest of their lives. 

These are known as surgical “never events.” These are never supposed to happen and never happen unless someone does something wrong. The Patient Safety Network (PSNet) has identified 29 different medical injuries as “never events,” including: 

  • Wrong-site surgery
  • Wrong-procedure surgery
  • Wrong-patient surgery
  • Unintended retention of a foreign object in a patient after surgery
  • Intraoperative or immediately post-operative/post-procedure death


Wrong patient surgeries are another type of never event. Imagine going in for surgery to remove a growth and waking up with an amputated foot. This kind of thing happens when doctors mix up patients who are in the OR for different procedures. 

According to The Joint Commission, there are 4 areas where the wrong site surgeries occurred: 

  • Scheduling
  • Pre-op/holding
  • Operating room
  • Organizational culture

A wrong patient surgery usually involves a problem with multiple parties, including the administrative staff, surgeons, doctors, nurses, and others failing to follow the proper surgical procedures. This includes time-out procedures where the staff all stops and takes an assessment just before starting surgery. This can include matching the patient’s identification with the patient in the room, the procedure, the side of the procedure, and other identifying characteristics. 


Left-behind surgical instruments should never happen and only occur with medical negligence. All types of objects have been left behind after surgery, including: 

  • Scalpels
  • Needles
  • Surgical sponges
  • Gauze
  • Clamps 
  • Surgical gloves
  • Scissors

One of the problems with these types of injuries is that it can take a long time before the error is discovered. After a patient is sewn up and waits to recover from the procedures, any pain, swelling, and discomfort may just come naturally to the medical procedure. It can take days or weeks for the patient to recover, never knowing they have a surgical device inside their body. 

However, after weeks or months, the patient may continue to suffer pain and signs of infection. The doctor may attribute this to other complications of surgery. Only after certain imaging studies or additional surgery may the real cause of the injury be known. Injury victims may suffer for years before they become aware of the cause of their surgical injuries. 


Anesthesia is used in most surgeries. General anesthesia puts the patient under so they are immobilized, do not feel pain, and have no memory of the procedure. However, anesthesia uses powerful drugs. If an anesthesiologist makes a mistake with the dosing or patient monitoring, a patient can suffer cardiac arrest or lack of oxygen. 


Hospitals are supposed to be places where patients get better instead of getting worse. Unfortunately, hospital-acquired infections (HAIs) are not uncommon for patients staying in hospitals. As soon as a patient’s body is opened up during surgery, the body is at risk of infection from viruses, bacteria, or fungi. Surgical-site infection accounts for almost one-quarter of common HAIs in a hospital.  

Surgical infections can happen when surgeons don’t follow proper sanitation procedures or when the hospital doesn’t properly sterilize surgical equipment. Infections in surgical sites can be especially dangerous because the patient is already compromised while recovering from surgery and the body has to do additional work to fight off infection. 


Patients have to understand the risks and benefits of surgery before they agree to treatment. If patients are not properly warned about the risks, side effects, and adverse events involved in a procedure, they can’t meaningfully agree to surgery. Without informed consent, the patient may have a malpractice claim against the doctor. 

When a doctor talks to a patient about a surgical procedure, the surgeon must disclose:

  • The condition being treated
  • The nature and character of the proposed treatment or surgical procedure
  • The anticipated results from the proposed treatment or surgical procedure
  • The recognized possible alternative forms of treatment
  • The recognized serious possible risks, complications, and anticipated benefits involved in the treatment or surgical procedure, as well as the recognized possible alternative forms of treatment, including non-treatment

A signed consent form alone doesn’t necessarily mean the doctor has gotten informed consent. A waiver may also not relieve the doctor of liability. A waiver generally can’t protect a doctor from negligence on the part of the surgeon. 


There are risks of surgery and some of these risks are known and may be impossible to eliminate completely. However, surgical risks are not the same as medical errors. According to the Federal Agency for Healthcare Research and Quality (AHRQ), a medical error is a “failure of a planned action to be completed as intended or the use of a wrong plan to achieve an aim. Errors can include problems in practice, products, procedures, and systems.”

In a lawsuit, the injury victim has the burden of proof to show the defendant doctor is liable for the patient’s injuries. To prove a medical malpractice claim, the injury victim has to show: 

  • The surgeon had a duty of care to the patient;
  • The surgeon breached their duty of care by deviating from medical standards; 
  • The medical standard deviation was a proximate cause of the patient’s injuries; and
  • The patient suffered harm. 

If the patient can prove the doctor is liable by a “preponderance of the evidence” (more likely than not), the doctor will be legally responsible for the patient’s injuries. 


The standards for proving your medical malpractice case may be different in a left-behind surgical injury claim. For these types of injuries, the injury victim may not have to prove the doctor was negligent. Instead, this can be proven with a legal doctrine known as res ipsa loquitur

Res ipsa loquitur (or res ipsa) is a Latin term for “the thing speaks for itself.” This is for cases where the injury victim may not know how the accident happened but the fact that it happened is enough to show liability. For example, if someone is walking down the street and is hit by a falling piano, the victim can generally claim damages even without showing how the piano handler was negligent. 

In proving a left-behind surgical instrument injury, the injury victim has to show: 

  1. The injury was caused by someone’s action that was so out of the ordinary that it would not occur without pure negligence;
  2. The negligent person was completely in control of the situation that resulted in the injury; and
  3. The injured person played no part in causing the injury.


Medical malpractice lawsuits are generally more complex than other types of personal injury claims. They can take a long time before they go to trial and there are specific court rules for malpractice cases. If you are going to take your medical injury case to court, you should have an experienced attorney on your side to guide you through the process. 

Some of the ways an experienced medical malpractice attorney can help include: 

  • Filing the claim before the end of the statute of limitations
  • Filing a complaint to meet the state’s certificate of merit requirements   
  • Getting a medical expert to review and certify the claim
  • Investigating the medical error with medical record review and depositions
  • Negotiating a settlement award to cover your injuries 
  • Dealing with the malpractice insurance companies
  • Aggressively representing your rights in a malpractice trial
  • Advising you of your legal options throughout the case
  • Keep you informed of any updates and changes in your case
  • Answering your questions and providing support in difficult times

To find out if you have a surgical malpractice case, contact an experienced medical malpractice law firm for legal advice about your rights. A medical malpractice attorney can review your case and help you understand what went wrong during the surgery and who was responsible. With an experienced attorney on your side, you can recover the maximum damages for your injuries. Contact a law firm that handles surgical error cases like yours. Contact Gilman & Bedigian online or at 800-529-6162 for a free consultation.

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