No matter what type of surgical procedure that you undergoing, whether it be scheduled or emergency surgery, or inpatient or outpatient surgery, a surgical procedure is a serious health matter, whether your surgery was to have your appendix removed, or an emergency quadruple bypass operation, any surgical procedure is a serious medical matter, and when not performed in accordance with current standards of medical surgical care can lead to catastrophic injury or even wrongful death . While no one wants to hear that a surgical error occurred in the course of their operation, such errors do not automatically constitute surgical error malpractice, if the standard of care for that particular surgery is met by the surgical team, and you were properly advised of, and gave your informed consent, as to the possibility of those complications and surgical errors which may occur during your surgery

What is Surgical error or Unnecessary Surgery Medical Malpractice?

The fact that a surgical error occurred during your operation does necessarily mean that the doctor, medical team, or hospital facility, is liable for surgical medical malpractice. Once a surgical error has occurred during the operative procedure, the surgical medical treatment in question, as with all medical malpractice cases, is whether or not the doctor, nurses, and/or other medical provider staff, has adhered to an established and accepted medical standard of care, and if not, whether or not the doctors in providing substandard treatment caused you serious physical permanent injury. If not, you can not bring a lawsuit.

Generally, as it relates to tort law, the standard of care is defined as: A diagnostic or treatment process that a medical professional should follow for each type of patient, illness, or clinical circumstance, and in legal terms, The level of medical care that a prudent, ordinary, health care provider, with the same experience and training, would provide to the patient, under similar circumstances, in the same community.

At Bisogno & Meyerson, our lawyers are experienced in dealing with most types of surgical errors and can establish if the treatment provided by your surgeon, surgical team, and anesthesiologist treatment was below the standard of care. If it is established that a surgical error was below the established medical standard of care, the critical issue then becomes whether you were permanently harmed by the error.

What is a Surgical Error?

Generally, a surgical error is a surgical mistake that could have been prevented in the course of the surgical operation. Because all surgeries involve certain known risk, it is required. In view of this, in New York, the failure of the surgeon to obtain an informed consent, renders them liable for negligence or battery, which constitutes medical malpractice. therefore, it is typical for the patient to sign what is called an “ Informed Consent”, before undergoing any surgical procedure. By signing the Informed Consent Form, you are indicating that you have been advised of the possibility of certain surgical errors, or other complication, that could occur during the surgery. Surgical errors that are unexpected and go beyond the known and informed risks of surgery can be the basis of a surgical medical malpractice action. Preventable surgical mistakes are also called “never events” because they should never happen.

Is the fact that an Informed Consent not signed cause for a Medical Malpractice Action?

Under certain circumstances, an informed consent may not have to be signed if an accident victim gets to the emergency room unconscious or otherwise incapacitated, and is rushed to the operating room for life saving surgery, and there is no one present with the legal authority to sign on the patient’s behalf.

What Is the Cause of Most Surgical Errors?

It is well established that no two people are anatomically the same, and no two injuries that require surgery or identical. In light of this fact, each surgical error can be unique. Regardless of tye type of surgical error that occurred, some commonly recognized causes of surgical errors, include:

Surgical Incompetence – If your surgeon is trying a new untried surgical procedure or has otherwise not performed a certain surgical procedure enough to achieve a sufficient level of competency, or simply lacks the skill to perform the surgery successfully. This does happen and often in the context of new surgical technology utilized during the surgery, such as surgical robots.

Failing to Properly Follow Accepted Operative Steps – Surgeons may mistakenly determine that certain surgical steps are unnecessary during the operation, which could be very costly in terms of complications, including internal bleeding or infections.

Insufficient Preoperative Planning – It is critical that a surgeon be well-prepared for surgery. This can include reviewing, and preparing for, any complications that are likely to occur. It can also include proper preparation by nurses, assistants, and anesthesiologist, to ensure all the necessary equipment is sterilized, ready and available, along with backup equipment, when and if needed by the surgeon.

Inadequate Surgical Team Communication – Failure of any member of the surgical team to effectively communicate can result in critical surgical errors. These errors include, for example, incorrectly marking a surgical site leading to operating at the wrong site for surgery, or failing to have all required surgical equipment available to the surgeon when needed. Additionally, there can also be communication errors regarding proper medication dosages or failing to have in the operating room the correct size oxygen mask, for example using an adult mask on a child. Any one of these miscommunication failures can result in serious health consequences.

Surgeon or Surgical Team Member Fatigue – Surgeons and surgical team members often work long shifts which often results in fatigue. It is well established that no matter how well one is trained, tired people, including medical professionals, are more likely to make mistakes when compared to when they are well rested.

Surgical Neglect – Occasionally, surgeons are simply not as careful or sanitary as they should be. This neglect could include failing to ensure proper sterilization of their surgical instruments and surgical scopes, including laparoscopes. Equipment that is known to be defective in its ability to be properly cleaned, or is otherwise defective, could also knowingly be used during surgery.

Surgeon Alcohol or Drug Use – Surgeons are human beings and can sometimes unadvisedly and dangerously, turn to drugs and alcohol to cope with the stress they sometimes face or to try and overcome fatigue that they may be experiencing. It is unsettling to think a surgeon would even consider entering the operating room under the influence of alcohol or drugs, but it can and does happens.

Surgical Neglect – Occasionally, surgeons are simply not as careful or sanitary as they should be. This neglect could include failing to ensure proper sterilization of their surgical instruments and surgical scopes, including laparoscopes. Equipment that is known to be defective in its ability to be properly cleaned, or is otherwise defective, could also knowingly be used during surgery.