Even with advancements in medical training and technology, surgery is a practice that can still pose a threat to the patient, even in routine procedures. Complications arise and surgeons make mistakes.
How do you know when a surgical error constitutes medical malpractice?
Generally, to be considered malpractice the physician must have acted negligently. Malpractice occurs when a surgeon performs a procedure incorrectly or fails to correct complications as they arise.
Complications occur
During a surgical procedure, there is always the potential that both known and unforeseen complications will arise. A complication is outside the surgeon’s control. The procedure was performed correctly and all appropriate protocols were followed, but a problem still occurred. Once a complication arises, the surgeon must do everything in his ability to correct it. However, some complications will result in injury and death. Consequently, surgeons must make these risks known to patients and their families before the surgery takes place.
Informed consent
Surgeons should be aware of potential complications and communicate all known risks to the patient. This is called informed consent. Informed consent exists to help patients make informed choices about their own healthcare.
Physicians have a duty to be aware of all known risks of a procedure. This means that the surgeon should be aware of typical complications and how to treat them. Additionally, surgeons should screen patients for any health conditions that may contribute to a surgical complication, such as heart disease. A failure to perform this duty or to adequately inform patients of all known risks constitutes negligence.
When an error becomes medical malpractice
Like all humans, doctors will make mistakes. The incision will be made at the wrong site, or a device will be incorrectly placed. These are true physician errors, rather than complications. When a mistake is made, the first question that should be asked is whether the surgeon was acting negligently when the mistake occurred. A surgeon acts negligently when he fails to adequately prepare for surgery, or fails to take normal precautions to prevent error during the procedure.
Here are some ways a physician may commit negligence during surgery:
Lack of competence: Despite the years of training needed to become a surgeon, not every doctor is competent to perform every surgery. While patients should carefully vet their healthcare professionals, each individual surgeon is ultimately responsible for discerning whether he is qualified to perform a procedure.
Lack of supervision or adequate communication: While a team of nurses, technicians, and aides will assist the surgeon during the operation, the lead surgeon is responsible for ensuring that all appropriate procedures and protocols are followed. If an incision site is incorrectly marked, or surgical sponges are not properly counted, the surgeon bears the responsibility for the resulting harm. Additionally, doctors must ensure that the surgical facility is sterile and that all instruments are clean and sterilized.
Unprofessional conduct: While it seems unfathomable, there have been many documented cases of surgeons operating under the influence of alcohol or narcotics. This is a serious breach of professional decorum. More commonly, doctors may be performing while under personal strain or while suffering fatigue. Surgeries can last for several hours and doctors must take appropriate measures to be rested and alert for the procedure.
In summary, there are cases where surgical error constitutes medical practice. These situations include:
- Failure to provide informed consent
- Failure to follow accepted procedure
- Incompetence or lack of preparation
- Unprofessional behavior
When a “good” surgeon makes a mistake, he will recognize his error and attempt to correct it immediately. This often prevents routine mistakes from becoming life-threatening errors. Medical malpractice occurs when the physician fails to act in way that any other reasonable, competent surgeon would act under the same conditions.
When attempting to determine whether a surgeon has committed malpractice, injured victims or their loved ones should contact a lawyer for advice. If the doctor’s actions seem inappropriate, it is quite possible that medical malpractice has occurred. Different states have different laws, so victims should consult a knowledgeable medical malpractice attorney licensed in their state to determine if they have a case.
Lawsuits can help families recover damages when medical tragedies occur.