Surgery is an invasive medical procedure that most people assume is relatively safe, and in the majority of cases they are right. The procedure, however, is usually performed by a number of medical professionals and there are opportunities for a number of things to go wrong, many of which are the result of medical negligence or malpractice.

Medical errors account for about 98,000 deaths each year throughout the country, most if not all of which were preventable. Another 99,000 people succumb to infections acquired in hospitals, but these are just the reported ones.

Massachusetts has some of the finest medical facilities in the nation but it is not immune from hospital and surgical errors. In 2015, the rate of medical errors in Massachusetts medical facilities rose by 60%. Of the reported 1,313 errors in which a patient sustained harm or death, 26 occurred as a result of the surgeon’s negligence. Twice that number were from medication errors and nearly 450 were from contaminated surgical equipment. Drug errors occurred in 45% of all surgeries performed at Massachusetts General Hospital from 2013 to 2014.

Physician’s Duty of Care

All professionals must adhere to a standard of care when performing their particular skills. This is usually defined as meeting the standard that an ordinarily qualified person practicing in that profession would follow.

For physicians and surgeons, they may be found liable for malpractice if their conduct in performing a procedure falls below the accepted standard of care compared to a reasonably competent surgeon practicing in the same area of surgery under similar circumstances. Any deviation from this standard can expose the surgeon to a claim for damages.

Types of Surgical Errors

Surgical errors that result in harm and death include:

  • Wrong-site surgery
  • Anesthesiology mistakes
  • Incorrect incisions
  • Operating on the wrong patient
  • Leaving surgical equipment inside a body cavity
  • Nerve damage

Patients are required to sign Informed Consent documents alerting them to the known risks of surgery including heart failure or stroke. However, no patient is expected to have consented to the risk of having a surgical sponge or clamp left inside their stomach, sustaining nerve damage, or suffering brain damage or death because of failure to monitor their vital signs. They are also not expected to assume the risk that their surgeon was under the influence or failed to follow procedures.

Causes of Surgical Errors

A surgical team is expected to follow certain protocol established by the hospital. When these protocols are not followed, then serious injuries can result. Errors that can occur include:

  • Miscommunication—believe it or not, patients are still misidentified or a staff person incorrectly marks the wrong site of the surgery. A nurse may incorrectly note the patient’s reaction to certain drugs or the physician may misread the note. Miscommunication can also lead to leaving a piece of surgical equipment inside the patient that can lead to infection and permanent damage in some cases.
  • Insufficient pre-operative procedure and planning—a complete medical history of the patient can reveal allergic reactions or a condition that can put the patient at considerable risk if a surgical procedure is performed unless certain precautions are taken. A failure to have a complete history can be deadly.
  • Fatigue or impairment—unfortunately, there are surgeons who find it necessary to drink or take certain drugs before performing surgery that can impair judgment or lead to incision errors. A surgeon who failed to get adequate sleep is no less at risk to commit an error than one who is under the influence.
  • Neglect—staff persons who fail to properly sterilize instruments can lead to septic shock and infection. In some cases, defective instruments are used.
  • Negligence or incompetence—you expect your surgeon to have the skills and competence gained from years of education and experience. This is not always the case and some surgeons are over their heads in performing procedures for which they lack the competence to perform.

Liability and Compensation

Medical malpractice claims are among the most difficult to prove and will require expert testimony to support a claim. Once a claim is filed, your medical malpractice lawyer must submit or make an Offer of Proof to a 3-person panel consisting of a Superior Court judge, a physician who practices in the same field of medicine as the defendant physician, and an attorney. If the panel decides that sufficient proof of malpractice has been shown, the plaintiff may continue. However, you can still pursue the claim if the panel rules against you but you must put up a $6000 bond.

There is a cap on general damages that a plaintiff can recover in a medical malpractice lawsuit in the amount of $500,000. General damages refers to pain and suffering and loss of consortium or companionship, usually the category of damages for which the most compensation is awarded. There is no limit on special damages, which includes past and future medical expenses and lost earnings, which can run into the hundreds of thousands of dollars or more. There is an exception to the cap on general damages where the plaintiff suffered a permanent or substantial loss or impairment of a bodily function or substantial disfigurement.

Damages, like liability, is an essential element in medical negligence cases for which a competent medical malpractice lawyer is essential.

Statute of Limitations

There is a 3-year statute of limitations for bringing a medical malpractice claim that runs from the time the surgery was performed. There are exceptions for minors who were injured in that they have 3-years from the time the minor’s parents had knowledge or sufficient notice of the malpractice to file. If the child was under 6-years of age, the parents or guardians have until the child’s 9th birthday to file the claim.

There is also the discovery rule that can extend the general 3-year limit. If the injury was one in which the plaintiff could not have reasonably discovered within the 3-year rule, then the plaintiff has 3-years from the time had knowledge or sufficient knowledge that the medical treatment was the cause of the injury.

However, in no case may the statute go beyond 7-years from the date the alleged malpractice occurred unless the defendant is found to have fraudulently concealed the malpractice, left the state, or if the victim was adjudged insane or incompetent. In these cases, the statute may be extended to allow filing of the lawsuit.

Consult the Law Firm of Lovenberg & Associates

Serious surgical errors demand that your medical malpractice lawyer have the skills, knowledge and resources necessary to get you and your family the compensation you deserve. Call the Law Firm of Lovenberg & Associates at (617) 973-9950 and schedule a free consultation to discuss your potential medical malpractice claim.