If you have suffered an adverse outcome after a hysterectomy, you might be wondering if you can or should sue your physician for medical malpractice. This article discusses the most common risks of hysterectomies, what you'll need to prove in order to bring a successful medical malpractice case, and the major challenges you will face in a hysterectomy medical malpractice lawsuit.
Common Risks of a Hysterectomy and Sources of Malpractice
A hysterectomy is the surgical removal of part or all of the uterus. Hysterectomies are the most commonly- performed gynecological procedure, with upwards of 600,000 performed in the U.S. each year.
Like any surgical procedure, a hysterectomy comes with risks. The most common complications of hysterectomies are:
- bladder injury
- ureteral injury
- bowel or small intestine perforation
- mechanical obstruction of the intestines
- vaginal vault granulation, and
- post-operative infections.
The main causes of malpractice liability stemming from the performance of hysterectomy are:
- negligently causing or contributing to any of the above risks
- failing to inform the patient of risks
- failing to get the patient’s permission before performing new procedures, except in emergency situations, and
- improper diagnosis and/or unnecessary or improper procedure.
(Learn more about the legal process of an unnecessary hysterectomy.)
Proving Medical Malpractice After a Hysterectomy
Although you may have experienced an unexpected outcome after a hysterectomy (even a severe injury), that does not mean malpractice is necessarily the cause.
To win a malpractice case against your gynecologist or other health care professional involved in the hysterectomy, you will first need to prove that your gynecologist did not provide the same quality of care and diligence that a competent gynecologist would have provided in the same circumstances. You will likely be required to find an expert medical witness who has experience in performing hysterectomies (usually a practicing gynecologist) to testify what the proper standard of care was and whether your gynecologist lived up to that standard.
Second, you will need to prove that not only did your gynecologist not live up to the medical standard of care under the circumstances, but that you were injured precisely because of your gynecologist’s “sub-standard” decisions and actions while performing the surgery.
In other words, it is very difficult to know at the outset if your gynecologist committed malpractice in the eyes of the law. In only a few situations will malpractice liability be fairly obvious, for example leaving behind a surgical sponge in the patient.
What to Expect in a Medical Malpractice Lawsuit
In most states, special medical malpractice rules make suing a health care provider more difficult, compared to suing “ordinary” defendants. The unique procedures and requirements in a medical malpractice case may include:
- a shorter deadline (“statute of limitations”) to file the lawsuit
- pre-suit requirements like screening panels and the filing of an “affidavit of merit” alongside the complaint
- retention of a medical expert witness in the particular field of health care at issue, and/or
- "caps" on the total amount a plaintiff can recover for a medical malpractice injury.
If you and your attorney manage to navigate the many procedural requirements, find an expert witness and demonstrate to the other side that you probably have a winning case, the final wrangling in the case will be over just what kind of damages resulted from your gynecologist’s negligence, i.e. how badly you were actually hurt and how much that injury actually cost you in medical expenses, lost wages, etc.