Do Infections After a Surgical Operation Establish Medical Malpractice?

The development of an infection after an operation does not itself establish medical or surgical malpractice, although the infection can be indicator that malpractice has occurred. Not every post-operative infection is the result of malpractice, in the same way that not every malpractice case is because of an infection.

What is Malpractice?

In the simplest terms, malpractice is when a doctor, nurse, other medical professional or even a hospital had an obligation to treat their patient according to an appropriate standard of care and deviated from that standard of care, often because of negligence.

The appropriate standard of care:

• can be established by examining current medical literature
• is the normal care that would be expected to be provided by another doctor with similar training and working in a similar specialty in a similar geographic location

Breach

A breach the failure of something happening, that should have reasonably been expected to happen.

• In the case of an infection after surgery, in almost all hospitals it is a recognized standard of care to provide antibiotics to a patient within one hour of the completion of the surgery.
• If that normal practice was not carried out, the standard of care would be said to be breached.

It is essential in a malpractice case to prove that the standard of care was breached. In order to do this, expert witnesses (at least one other doctor who practices the same type of medicine as the doctor accused of malpractice) are used to determine what should have been done, after reviewing the facts in the medical record. If they find that the doctor did not deviate from an accepted standard of care, then there is likely no malpractice case.

Additional Injury or Illness

In considering an infection after surgery, in order to establish malpractice, in addition to establishing whether or not the standard of  care was breached there must next be a determination of whether or not the patient suffered additional harm or injury as a result of the infection.

• Some infections can be cleared up quickly with antibiotics leaving no permanent harm.
• Some infections can cause immediate death, or a short term or permanent disability. As an example, a surgical wound infection where the incision needs to be opened up before it is completely healed can take months of visiting nurse care to treat and the patient may be unable to work during that time.

Connecting the Dots

The final step of establishing medical malpractice is to be able to prove that the infection, which caused additional harm or injury to the patient was the direct result of the breach of the standard of care, and not the result of any other underlying medical condition.

• If a patient does not properly care for a wound site as instructed after leaving the hospital, or ignores symptoms they are told verbally and in writing not to ignore - has the patient contributed to causing the infection?

Get Legal Help

Rather than being frivolous, as many would like to think medical malpractices often are, they are often heartbreaking and frustrating. If you think you or a family member have been the victim of medical malpractice, don't wait. Contact an attorney right away. Getting well is important, but so is seeking redress if you have been injured by a person or institution that you trusted.