Filing a Lawsuit for Surgical Error

Surgical error is a risk in any surgery. Sometimes, the malpractice that caused the error is so egregious that a patient feels he should sue to compensate him for the surgeon’s recklessness. Surgical error lawsuits are very technical and time consuming. Below is a guideline for filing a surgical malpractice lawsuit.

Identify Your Claim

The first thing any plaintiff in a surgical error lawsuit must do is identify the malpractice, negligence or recklessness that occurred in the operating room. This can be done by looking at the injury resulting from the surgery and naming the circumstances that could have caused it. The reason why this is important is because if the injury was made known to the patient as possibly occurring, or if it is a regular side-effect of the surgery, the patient may not have a case.

Gather Documentation

The next step prior to filing a lawsuit for surgical error is for the injured party to gather any and all documents pertaining the original injury, surgery and any subsequent injury or damage. These documents will enable the injured party to identify the strength of his argument. While not all of these documents will be included in the initial court filings for the lawsuit, they will be used by both parties during discovery.  

File a Complaint

Every lawsuit begins with the plaintiff filing a complaint. A complaint identifies the parties and accuses the defendant of behaving in a way that injured the plaintiff. The complaint contains the bare facts of the case, such as the date, time and location of the surgery and the resulting injury. It is in the complaint that the plaintiff also makes his request for compensation from the defendant. A specific amount of money or other remedy does not need to be requested at this time, it is sufficient for the plaintiff to merely request compensation in general.

Once delivered to court and the court receives payment of the fees for filing a case, the complaint will be assigned a case number and a judge.

Surgical Lawsuit Basics

Surgical malpractice lawsuits often involve extensive medical opinions and theories. Because of this, they are quite complex. While these cases do settle out of court sometimes, particularly if the surgeon has good malpractice insurance, they are also litigated before a judge or jury. These lawsuits can last several months to several years prior to being resolved.

Obtain Legal Advice

Because surgical error lawsuits are complicated, an injured party should seek legal representation or, at a minimum, obtain an opinion on the potential success of a claim prior to filing a lawsuit. Many personal injury lawyers will work for a percentage of the settlement amount awarded to the plaintiff at the end of the suit, if any.