Most people exit the hospital confident that their time in the operating room was uneventful. And in most cases, it was. But if things didn’t go as planned and complications arise, it’s only natural to assume it was a “known risk” or one of those “things that just happen.” Sometimes it is. Sometimes it isn’t. The key to the latter? Awareness.
Understanding What You’re Actually Claiming
Law firms like Percy Martinez take on cases involving surgical never events such as wrong-site surgery, retained instruments as well as subtle errors in post-operative care that lead to preventable complications. In such cases, it is not sufficient to simply prove that an error was committed. It must also be established that this error was directly responsible for the harm suffered. This is known as proximate cause, and it is often the deciding factor in filing or not filing a claim.
Medical errors, among them, surgical errors, are the third most common cause of death in the US, resulting in over 250,000 deaths each year (Johns Hopkins Patient Safety Experts). Nonetheless, most of these cases never make it to court as patients are unaware that they have legal recourse.
While your medical bills, lost wages, and probable future costs can be added up, the physical and emotional suffering sustained in the process can be a lot more challenging to measure. However, in many states, both types of damages are compensable, and you are entitled to seek reparation for your pain and suffering as well as financial losses.
Bad Outcomes Aren’t Automatically Malpractice
This is the difference that stops more potential claims in their tracks than any other. Surgery is risky business. Surgeons have patients sign consent forms in part because bad things – infection, bleeding, nerve damage – can happen even when everything goes right. A bad outcome doesn’t equate to negligence.
What the law wants to know is whether there was a breach of the standard of care – whether the surgeon, anesthesiologist, or post-op team did something in a situation where no reasonable professional would have done the same. That’s a pretty nuanced question, and it requires both medical and legal expertise to evaluate. Don’t try to figure it out yourself. And don’t assume you don’t have a case until you do.
The other bucket you should be aware of is what the law calls informed consent. If the surgeon performed a technically competent surgery but didn’t warn you about the specific risk that led to your injury, you may have a case even if the surgery itself wasn’t botched. Your right to receive information about reasonably foreseeable risks before you agree to a treatment isn’t just something you’re owed out of common decency – it’s protected by the law.
Get Your Records Before You Do Anything Else
Medical records provide a factual summary of your experience while being anesthetized. They detail dosages and timing, instrument counts, anesthesia logs, and post-op entries. You’re entitled to a duplicate, and the sooner you request your records the better.
Hospitals cannot keep records from you, however, it can be difficult to pinpoint an accurate sequence if too much time passes. Additionally, records will indicate if all procedures were followed or if there’s something a subsequent expert witness can use to determine liability. If records aren’t available, it’s an uphill battle.
It’s also worth noting that records don’t just come from the hospital. Your primary care physician, any specialists you saw before or after the procedure, pharmacy records, and even billing statements can all paint a fuller picture of what happened and when. If your surgery involved a medical device or implant, request documentation related to that too – lot numbers, manufacturer details, and device history can become important if a defective product is part of the equation. Think of your record-gathering as casting a wide net, not just pulling one file from one place.
Don’t Accept An Early Settlement Without Understanding The Full Picture
Hospital insurers move quickly after adverse events. An adjuster may contact you weeks after discharge with a settlement offer that, in the moment, sounds reasonable. It rarely is. The full impact of a serious surgical injury often takes months or years to manifest – additional surgeries, long-term physical therapy, permanent disability that affects earning capacity.
Once you accept a settlement and sign a release, that’s generally the end of it. There’s no coming back with new information about costs that weren’t apparent at the time.
Waiting to consult an attorney doesn’t mean waiting to file. It means making sure you understand what you’re being offered before you give up the right to anything else. The statute of limitations – the window of time to file a claim – varies by jurisdiction and by the nature of the injury. Missing that window closes the door entirely, which is another reason not to sit with unresolved questions for too long.
Hospitals Carry Responsibility Too
While many people think of the surgeon first, and the hospital second, when it comes to liability in malpractice cases, it’s not that simple. Hospitals may be held accountable under vicarious liability if negligence occurs that involves employees carrying out their expected duties. Nursing staff, anesthesiology teams, and post-operative care in many instances qualify for this. Both regarding who might bring a lawsuit and how much money might be available to compensate severe damage, this is critical.
The legal system isn’t a perfect tool. But for patients whose trust in a medical professional was broken by something that should never have happened, it’s often the only mechanism available to create accountability – and to prevent the same thing from happening to someone else.
