Does an injury during surgery qualify as a medical malpractice case?


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Question:

Does an injury during surgery qualify as a medical malpractice case?

Answer:

Maybe, but it’s never an open-and-shut case. Most people have heard the line “There’s no such thing as ‘minor’ surgery.” And there’s truth to it when it comes to legal liability when a procedure goes wrong. No surgery comes without risks, and there is never a guarantee that you’ll end up with a favorable result.

Having said that, the known risks of any surgical procedure need to be communicated to the patient beforehand. This is part of the doctor’s legal obligation to get the patient’s informed consent -- and failure to properly obtain it can itself amount to medical malpractice.

But concerning bad results, simply because something went wrong during your surgery, and you were left worse off than you would have been had the procedure never happened, it doesn’t necessarily follow that your doctor committed medical negligence.

So, how do you prove that an injury from surgery was actually caused by medical negligence? In any medical malpractice lawsuit, the keys are:

1) establishing the appropriate medical standard of care before and during the surgical procedure -- what would a similarly skilled and competent surgeon have done (or not done) at each step.

2) proving exactly how your surgeon fell short of that standard, and

3) showing that your surgeon’s medical negligence caused you some kind of measureable harm -- by making additional medical care necessary, prolonging your recovery, causing you to miss time and work or otherwise lose income, and so on.

A medical malpractice plaintiff can’t typically prove these things alone (and neither can most attorneys). That’s why most medical malpractice cases hinge on the hiring and testimony of the right expert medical witness. In fact, many states require the participation of an expert in medical malpractice cases unless the surgeon’s fault is obvious (they operated on the wrong limb, for example).

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