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Surgical Errors: Understanding the Legal Framework for Accountability

November 24, 2023

Surgical Errors: Understanding the Legal Framework for Accountability

Medical procedures are intricate and require a high degree of precision and expertise. While healthcare professionals, including surgeons, usually possess this expertise and deliver care with the utmost competence, surgical errors can and do occur. Such errors can have profound effects on a patient’s health and well-being, which is why it’s crucial to understand the legal framework that holds medical professionals accountable. At Garber Law, P.C., we provide representation for victims of surgical errors and strive to illuminate the legal path for those seeking justice.

Types of Surgical Errors

Surgical errors can be categorized in various ways, and understanding them is the first step to comprehending the gravity of the situation:

  • Wrong Site Surgery: One of the most blatant surgical errors is performing surgery on the wrong body part. For instance, operating on the left leg instead of the right.
  • Wrong Procedure: A patient is prepped for one type of surgery, but the surgeon performs a different one.
  • Foreign Objects Left Behind: Instruments, sponges, or other medical supplies can be inadvertently left inside a patient’s body post-surgery, leading to infections and other complications.
  • Nerve Damage: Improper surgical techniques or accidents during surgery can lead to nerve damage, which may result in chronic pain or loss of function in some parts of the body.
  • Anesthesia Errors: Incorrect dosage or administering anesthesia can lead to brain damage or, in the worst cases, death.

Legal Criteria for a Malpractice Claim

Not all surgical errors automatically warrant a malpractice claim. For a case to be considered medical malpractice under the law, the following criteria must be met:

Duty of Care

Every medical professional owes their patients a “duty of care.” This means that when a doctor-patient relationship is established, the medical provider has a responsibility to provide competent and standard medical care to that patient. Simply put, if you went to a doctor for a consultation or treatment, that doctor owes you a duty of care.

Breach of the Duty of Care (Negligence)

For a malpractice claim to be valid, it’s not enough that the outcome of a procedure or treatment was undesirable or unexpected. It must be proven that the doctor breached (violated) their duty of care. This breach usually refers to the doctor acting (or failing to act) in a way that a competent doctor, under similar circumstances, would not have. For instance, if a surgeon operates on the wrong body part, they likely breached their duty of care, as a competent surgeon would not make such an error.


A critical component of any malpractice claim is establishing causation. This means that not only must the doctor have breached their duty of care, but this breach must be the direct cause of the patient’s injury or harm. It’s not enough to show the doctor was negligent; you must also prove that this negligence directly led to your injury. For instance, if a doctor prescribes the wrong medication, but you don’t take it, then there’s no causation between the doctor’s negligence and any harm to you.


Finally, for a malpractice claim to be successful, there must be tangible damages. These can be physical, emotional, or financial. This might include:

  • Physical Harm: Such as pain, worsening of health, or any disability caused by negligence.
  • Emotional or Psychological Harm: This could be the trauma or mental anguish experienced due to the malpractice.
  • Financial Damages: These could be additional medical bills incurred to treat the harm caused by the negligence, lost wages if you had to miss work, or future loss of earning potential if the harm has permanently impacted your ability to work.

It’s essential to understand that each medical malpractice case is unique, and meeting these criteria doesn’t guarantee a successful lawsuit. However, they serve as a foundational checklist when considering the validity of a claim. If you believe you have a valid claim, it’s critical to consult with a specialized attorney, such as those at Garber Law, P.C., to navigate the complexities of the process and ensure your rights are protected.

What to Do If You’ve Experienced a Surgical Error

If you or a loved one has experienced a surgical error, the following steps can guide your course of action:

Prioritize Your Health

Before any other steps, ensure your safety and health:

  • Seek Immediate Medical Care: Consult another doctor or specialist to evaluate the extent of any damage or personal injury. Addressing your health concerns must be your primary focus.
  • Follow-up Care: Schedule and attend any necessary follow-up appointments or procedures to correct the error or prevent further complications.

Gather and Preserve Evidence

It’s important to start collecting evidence as soon as possible:

  • Secure Medical Records: Request a copy of your complete medical records, which will provide essential details about the surgery and any subsequent care.
  • Photographic Evidence: Depending on the nature of the error, take photos of the surgical site or any visible injuries.
  • Maintain a Personal Diary: Document everything related to the surgery and its aftermath. Note your physical symptoms, emotions, conversations with medical staff, and any additional expenses or missed work.

Avoid Speaking Directly to Liable Parties

  • Stay Discreet: While you might be inclined to confront the surgeon or hospital staff, refrain from discussing the details of your case without legal counsel.
  • Avoid Recorded Statements: If contacted by the hospital’s insurance company, avoid giving recorded statements or accepting settlement offers without first consulting an attorney.

Seek Legal Counsel

  • Consult a Malpractice Attorney: Engage with an experienced medical malpractice attorney to evaluate the potential of your claim. They can help guide you through the legal process, determine the viability of your case, and advocate on your behalf.
  • Provide All Necessary Information: Give your attorney all the evidence, medical records, and your personal diary to help them build a strong case.

Notify Your Insurance Company

  • Report the Incident: While your attorney will handle most communications, it’s good practice to inform your health insurance provider about the error. They might offer insights or documentation that could assist in your claim.

Seek Emotional and Psychological Support

Surgical errors can take a toll on your mental well-being. Consider seeking therapy or counseling to help cope with the trauma. Support groups can also provide comfort, allowing you to connect with others who’ve had similar experiences.

Be Patient and Persistent

Medical malpractice cases can be lengthy and demanding. Trust in your legal counsel, ensure open communication, and stay informed about the progress of your case.

Contact an Experienced Medical Malpractice Lawyer at Garber Law, P.C. for a Free Consultation About Your Case Today

While the vast majority of surgeries are completed without complications, surgical errors, when they occur, can have life-altering consequences. Understanding the legal framework for accountability is essential for those seeking redress.

If you or a loved one has suffered due to a surgical error, it’s vital to have experienced legal representation to guide you through the complexities of medical malpractice claims. At Garber Law, P.C., we stand by our commitment to represent victims of surgical errors and ensure they get the justice they deserve.

Take Action Now! Don’t let a surgical error dictate the course of your life. Contact us today for a consultation and take the first step towards reclaiming your life and health.

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