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Surgery is invasive and technically complex, yet severe irreversible errors by surgeons are relatively rare considering the millions of operations annually. However, when these devastating mistakes do transpire, affected patients often face immense suffering and steep medical bills.

In cases of clear negligence, victims may pursue medical malpractice litigation against the surgeon or hospital to seek compensation for their losses and damages.

This comprehensive patient guide examines defining characteristics of medical malpractice as it relates to surgery, the formidable obstacles of filing a claim, phases involved in litigation, potential motivations for taking legal action, effects on the provider, and most importantly, proactive solutions to help prevent adverse events that harm patients.

What Constitutes Medical Negligence in Surgery?

Before digging  into what to do if a surgeon makes a mistake, it’s important to understand surgeon-related mistakes, and how they can amount to medical malpractice.

Medical malpractice is established when a healthcare provider deviates from broadly accepted standards of care, causing concrete preventable injury to a patient.

Specific to surgery, a wide range of circumstances could qualify as provider negligence and grounds for a lawsuit, including:

  • Wrong site/wrong patient surgery – Operating on the wrong body part, limb, organ, or level of the spine or performing the incorrect surgery for a patient altogether.
  • Retained foreign objects – Surgical sponges, scalpels, broken instrument pieces, or other items accidentally left inside the patient’s body after surgery, often necessitating additional procedures to remove them.
  • Organ perforation – The surgeon inadvertently punctures, nicks, or lacerates internal organs, major blood vessels, or nerves during invasive surgery, resulting in hemorrhage, infection, permanent impairment or disability.
  • Surgical site infections – Improper sterile technique, lapses in protocols, or inadequate post-op care resulting in obstinate antibiotic-resistant “superbug” infections like MRSA. About 5% of surgeries result in surgical site infections.
  • Anesthesia mistakes – Administering the incorrect medication or improper dosage, intubation errors, neglecting to monitor vitals, resulting in hypoxic brain damage or even death in some cases.
  • Medication errors – Prescribing/administering the wrong drug or dosage pre-op or post-op, resulting in allergic reactions, complications, prolonged hospitalization, or death.
  • Diagnostic errors – Misdiagnosis, delayed diagnosis, or failure to order appropriate tests resulting in improper or unnecessary surgery causing new medical problems.

These and other surgical slip-ups – when resulting in major, irreversible patient harm – may constitute legitimate grounds for a malpractice claim. Therefore, if you are wondering about what to do if a surgeon makes a mistake, one of the most straightforward answers is simply to look into filing a medical malpractice claim for compensation.

However, compensation is generally only awarded if the patient’s attorney can definitively demonstrate through records and expert testimony that the provider’s lapse in care directly caused otherwise avoidable injury and damages. Not all surgical risks, complications or bad outcomes necessarily equate to malpractice.

Potentially Devastating Impacts of Surgical Errors

When serious medical errors happen in the operating room or perioperative environment, the consequences for both harmed patients and responsible providers can be immense, with effects rippling outward to families, communities, and healthcare systems. Commonly seen impacts include:

For the patient:

  • Prolonged hospitalization, transfer to ICU, one or more additional corrective surgeries
  • Permanent or long-term injury, disability, loss of limb function, amputations, paralysis
  • Severe disfigurement, scarring, chronic intractable pain
  • Months to years of grueling rehabilitation, mobility aids, home care, medications
  • Total loss of livelihood, income, and ability to work
  • Clinical depression, anxiety, post-traumatic stress, relationship turmoil
  • Bankruptcy due to astronomical medical bills
  • Death in up to 6% of cases

For the surgeon:

  • Permanent damage to professional reputation, loss of specialty credentials
  • Hospital review, revocation of operating privileges, disciplinary action
  • Exodus of referrals and patients, practice financial insolvency
  • Emotional trauma, depression, shame, suicidal thoughts
  • State medical board investigation, license suspension or revocation
  • Soaring malpractice insurance premiums, unaffordability of coverage
  • Multi-million dollar malpractice payouts

For families:

  • Loss of loved one’s companionship, income, parental guidance
  • Serving as full-time caregivers, often requiring leaving jobs
  • Depression, anxiety, grief
  • Financial hardship

For the hospital:

  • Reputational damage and reduced patient trust
  • Staff morale issues, internal culture problems
  • Loss of revenue, negative publicity
  • Litigation costs, raised insurance premiums

Considering the above potential impact of surgeon mistakes, taking steps to minimize these effects is usually the first answer any given lawyer would give to a victim asking about what to do if a surgeon makes a mistake. This includes seeking appropriate medical care. Thereafter, seeking compensation should follow. While no monetary award can undo the enormous damage wrought by medical negligence, financial compensation does offer patients and families resources to access ongoing care, recover lost income, and make the best of greatly altered lives.

What To Do If A Surgeon Makes A Mistake: Take Steps to Seek Compensation and Justice

Pursuing legal action against a negligent surgeon or hospital is complex. Here is an overview of the key steps you will have to take to get compensation:

1. Reviewing Time Limits

Every state enforces strict statutes of limitations dictating the deadline for patients to file a malpractice claim, most often 1 to 3 years after the surgery or procedure in question, or 1 to 3 years from the date that resulting harm was first discovered. Acting quickly is crucial; even valid claims with merit can get thrown out of court based on tardiness. An experienced medical malpractice attorney can advise on these nuanced time limitations.

2. Gathering and Evaluating Records

The patient’s attorney will gather all pertinent medical records, including pre-operative office visits, surgical operative reports, anesthesia administration records, nurses’ bedside notes, laboratory results, pathology reports, imaging studies, medication administration logs, hospital discharge summaries, and post-surgical clinic follow-up notes. Billing and coding details may also be requested. Thorough record collection and detailed timeline creation are pivotal to proving the case.

3. Review by Expert Witnesses

The patient’s attorney retains highly qualified medical experts who specialize in the surgery type and health conditions involved in the claim. These experts objectively review the assembled records to provide their esteemed opinions on whether the providers clearly breached the relevant standard of care based on their wealth of experience and up-to-date clinical knowledge. Expert testimony carries significant weight in establishing medical negligence.

4. Filing of Lawsuit Paperwork

Once a solid body of evidence appears to exist, the Houston surgical error attorney files an official civil complaint with the court detailing allegations of negligence against the provider(s) and designating a specific monetary amount sought. The defense typically disputes the claim. Extensive information exchange and evidence gathering then commence.

5. Discovery Phase

During discovery, pertinent information is obtained from the opposing side via written interrogatories, the gathering of documents, deposing key witnesses like the defendant surgeon under oath to gain inside accounts of what transpired, and other discovery activities. Each aspect of the medical care is scrutinized. This rigorous give-and-take process takes many months to even years in most malpractice cases.

6. Settlement Negotiations

The majority of malpractice claims feature out-of-court legal settlements before proceeding to full trial due to the time and expenses involved. Defense attorneys and malpractice insurers often engage in private mediation sessions and settlement negotiations with the plaintiff’s side during litigation. Average out-of-court settlements range from several hundred thousand dollars for smaller errors up to over $1 million for grave ones, based on factors like degree of injury.

7. Trial

If no pre-trial settlement agreement can be reached despite extensive negotiation attempts, the case heads to a time-intensive jury trial. Both sides hire expert witnesses to strengthen their positions. The burden is on the patient’s legal team to demonstrate to the jury through records, testimonies, and other evidence that substandard medical care resulted in the claimant’s injury. Awards may include coverage of past and future medical costs, lost income, and “pain and suffering” damages.

8. Enforcement of Payment

If found negligent, the provider’s malpractice insurer generally pays the judgment amount to the plaintiff patient. Awards that exceed the physician’s policy limits may result in personal bankruptcy. Money cannot undo the damage but offers some financial stability to access ongoing care and replace lost income during incapacitation.

Litigating an air-tight malpractice case demands tenacity, resources, and specialized legal acumen – having an attorney well-versed in medical negligence cases helps patients stand up to a formidable system and navigate the convoluted litigation pathway. An experienced lawyer will continually advise on the patient’s rights and recommend optimal next steps at each stage of the process.

Why Patients Sue Doctors After Surgery Gone Wrong

No patient wants to take legal action against their physician; the sacred patient-doctor bond is highly personal and should be one of complete trust. However, when grossly substandard care during surgery results in enormous preventable injury or loss of life, litigation may ultimately be the only recourse left. Common motivations cited by patients for a filing medical malpractice lawsuit include:

  • Accountability – Patients deserve complete transparency and accountability when a surgeon acts negligently. Lawsuits function as one of the only ways to put health professionals on formal notice that their subpar actions are unacceptable.
  • Financial survival – The sky-high costs of additional surgeries, lifelong care, rehabilitation, and loss of income from inability to work necessitate immense monetary compensation that only litigation realistically provides.
  • Answers and information – Filing a claim frequently uncovers specifics on what exactly went wrong that providers may not voluntarily disclose, which brings closure.
  • Justice and validation – For gravely harmed patients or grieving families, taking legal action sometimes represents the only way to get a sense of justice for the incredible damage inflicted on them or their deceased loved one.
  • Preventing future errors – Large verdicts garner media coverage that sheds public light on patient safety issues, patterns of inadequate care, and the need for change – potentially protecting other patients.
  • Deterrence – Widespread publicity around large malpractice payouts can deter other surgeons and hospitals from cutting corners on safety, assigning improper procedures, ignoring warning signs, and putting finances above patient wellbeing.

Rarely is the motivation just money or vengeance. Patients sue to get vital answers, seek accountability and justice, safeguard others, force systemic improvements, and acquire the financial means to even survive what was done to them.

Behaviors that Make Suing for Medical Negligence A First Option

From the physician’s perspective, getting hit with a malpractice lawsuit can be jarring, humiliating, infuriating, terrifying, or utterly puzzling. But in many instances, certain provider behaviors and attitudes can actually provoke litigation in patients’ minds when they are thinking about what to do if a surgeon makes a mistake. These include:

  • Poor communication skills – Dismissing patient concerns, failing to listen, rushing visits, intimidating patients from asking questions, and refusing to discuss problems increase the odds of patients contacting attorneys later.
  • Withholding details about errors – Lack of transparency and physicians’ reluctance to admit the full truth to injured patients tends to increase litigation likelihood. Deception erodes trust.
  • Not saying sorry – Failing to follow up with patients after complications or simply offering a heartfelt apology can give the perception of callous indifference and prompt legal action.
  • Focusing solely on defending themselves – Doctors responding to complications with denial, defensiveness, and primarily seeking to protect their own reputations frequently pushes patients towards  hiring aggressive top rated medical malpractice lawyers as the first resort with respect to the question of what to do if a surgeon makes a mistake.
  • Disregarding quality improvement opportunities – Providers who respond dismissively to patients reporting medical errors or don’t take steps to prevent recurrences may infuriate patients who then choose legal remedies.
  • Arrogance and dismissiveness – When physicians exhibit condescension, disrespect, and lack of compassion for the patient’s suffering after errors, malpractice suits become much harder to avoid.

Doctors can mitigate litigation risk through honest empathetic communication, genuine apology when appropriate, and showing commitment to learning from complications. Compassion and transparency matter immensely.

What To Do If A Surgeon Makes A Mistake: Improve Surgery Safety

When tackling the question of what to do if a surgeon makes a mistake, taking steps to improve surgery safety is one of the most productive responses to this question.

Though some human mistakes will always occur in a complex discipline like medicine, implementing evidence-based safety and quality practices can significantly reduce the incidence of devastating surgical errors that harm patients. Some best practices include:

What to do if a surgeon makes a mistake at the Provider Level:

  • Ongoing continuing education and skills training to keep surgeons’ expertise razor sharp in our rapidly evolving field
  • Routine peer review, performance evaluation, patient outcomes assessments, and mentoring to proactively identify opportunities for improvement
  • Universal adoption of standardized pre-operative, perioperative, and post-operative surgical checklists to avoid oversights
  • Interdisciplinary simulation drills to foster effective teamwork, communication, and collaboration amongst OR staff during intense procedures
  • Protocols limiting total consecutive hours on duty and procedures per shift to decrease fatigue, overscheduling, and burnout
  • Improved psychological support resources and anti-burnout systems to support surgeon wellness and help prevent impairment

What to do if a surgeon makes a mistake at the Hospital Level:

  • Rigorous accreditation processes that demand robust safety protocols, infection prevention, compliance audits, care standardization, and measurement
  • Implementation of clinical pathways to minimize variability and human judgment errors in routine surgical patient care
  • Ongoing investments in OR technology enhancements such as advanced imaging, robot-assist devices, artificial intelligence, analytics, and augmented reality systems to optimize outcomes
  • Commitment to transparency with patients/public around adverse events, reporting of “near misses”, infection rates, and other quality indicators rather than secrecy

What to do if a surgeon makes a mistake at the Patient Level:

  • Taking time to research surgeons’ experience, hospital quality ratings, and designations like “Centers of Excellence” for specific procedures
  • Asking thoughtful questions of the surgical team before and after surgery and providing complete medical history
  • Following all pre-operative and post-operative instructions dutifully
  • Alerting nurses or physicians right away with any concerning or worsening symptoms after surgery
  • Voicing preferences, concerns, and participating actively in care decisions

Role of lawyers in surgical error cases

The obvious answer to the question of what to do if a surgeon makes a mistake, is to file a lawsuit in a court of law.

Successfully litigating a medical malpractice lawsuit involves extensive time, meticulous evidence gathering, high financial stakes, fierce legal battles with hospital attorneys, and an intricate web of state laws and restrictions. Having an experienced medical claims lawyer always proves essential.

Navigating the Complex Legal Landscape

Medical malpractice law varies substantially between states. Key aspects like statutes of limitation, damage caps, expert witness requirements, and burdens of proof diverge across different jurisdictions. An attorney well-versed in the laws of the specific state is invaluable to navigating important nuances.

For example, Texas malpractice law mandates that plaintiffs file cases within 2 years of the negligence, while other states allow up to 4 years. The Lone Star State also requires the support of a qualified medical expert witness to corroborate breaches of standards of care. As a result, the reason why hiring an attorney should always be the first item in any list advising victims on what to do if a surgeon makes a mistake, is so as to make it easier for them to avoid common litigation and negotiation mistakes.

Building a Strong Case

The linchpin of any malpractice claim is gathering robust evidence and documentation to prove the three key elements of negligence:

  1. Duty owed – the physician-patient relationship established a duty requiring the provider to meet certain standards of care.
  2. Breach of duty – through negligent action or inaction, the provider failed to meet the applicable standard of care.
  3. The breach caused identifiable harm to the patient – the provider’s negligence directly caused injury, disability, costs, or damages.

Meticulously combing through medical records, obtaining salient facts from the client, consulting medical experts, and identifying key witnesses comprise some attorney groundwork. Lawyers leave no stone unturned, obtaining every shred of evidence available to build the strongest argument demonstrating clearly how the healthcare provider’s malfeasance damaged their client.

Leveling the Playing Field

Hospitals and doctors secure representation from major law firms specializing in medical malpractice defense. These teams have immense resources and experience. Malpractice attorneys acting as patient advocates help level the playing field against powerful hospital legal teams. They possess insider knowledge of medicine and familiarity with laws and regulations governing malpractice lawsuits. Securing justice hinges on engaging proficient legal counsel from the outset.

Bearing Financial Burdens

The cold reality is that litigating medical negligence claims costs big money. Despite often losing their livelihoods, injured patients themselves usually cannot front the large sums required to fund cases – medical expert fees, discovery, depositions, specialty investigations, etc. Attorneys cover these costs and only collect if they win or settle the case, allowing more patients fair access to the civil justice system when harmed.

Lawyers front all upfront litigation costs on contingency, taking on significant financial risk. Ultimately they earn a portion of the judgment or settlement as payment for this risk and their services. This arrangement provides clients their best chance to pursue accountability for medical errors they could not otherwise afford.

Managing Emotional Toll

The legal process following medical errors exacts a heavy emotional toll on harmed patients. Attorneys provide both legal guidance and emotional support during the draining litigation. They understand how to temper expectations, quell frustrations when things move slowly, maintain hope against the odds, and help clients ultimately feel closure and vindication when justice is served. Their advocacy goes beyond just courtrooms.

Pursuing Justice

Most malpractice attorneys enter this field because an injustice in their own lives instilled deep convictions about protecting the vulnerable against the powerful. They understand litigation represents the last remaining avenue toward accountability and compensation when all else fails for patients grievously harmed by medical negligence. When care providers will not right their wrongs voluntarily, legal remedy emerges as the only recourse left.

Negotiating Settlements

The vast majority (over 90%) of malpractice claims settle out of court before trial. Attorneys spend extensive time negotiating with defense lawyers and insurance companies to reach equitable settlements that deliver reasonable justice and closure for the client. Settlements avoid protracted court proceedings and the proverbial pound of flesh. If reasonable settlement offers do not materialize, counsel proceeds to trial.

Leveling the Legal Arena

During litigation itself, malpractice lawyers utilize their mastery of applicable state laws, court procedures, rules of evidence, and legal strategies to square off against hospital attorneys on a more even playing field. They adeptly argue motions, obtain favorable rulings, discredit defense claims, and bulldog towards a plaintiff verdict or satisfactory settlement at trial. Their dexterity in legal settings secures the best possible outcome given the facts.

Fighting for Full Compensation

When victory is obtained – whether via settlement or jury award – the attorney ensures their client receives the full due injury compensation. This encompasses present medical costs, future expected treatments, property losses, lost income, disability, disfigurement, pain and suffering, and other applicable damages inflicted by the provider’s negligence. Lawyers fight tirelessly to obtain fair remediation for these damages.

Pushing for Change

Some medical malpractice verdicts reach headlines, placing much-needed public spotlight on patient safety issues and spurring positive systemic changes. Large jury awards can also prompt providers to implement better safety protocols and deter corner-cutting. Ethical attorneys use these cases to also advocate for policy reforms like caps on work hours for physicians. They fight to prevent recurrences and improve healthcare delivery.

For victims like Mary following the trauma of surgical errors, the road to closure and justice depends in large part on securing an attorney who will zealously advocate on their behalf. Qualified counsel adeptly guides clients through the convoluted legal terrain, absorbs heavy financial burdens, provides emotional backing, levels the playing field against powerful hospital resources, pursues rightful compensation, and advocates for systemic improvements – all on the long road toward resolution and a renewed sense of justice. With strong legal partners at their side, aggrieved patients move forward.

Contact Us

For victims of surgical negligence contemplating what to do if a surgeon makes a mistake, having a seasoned lawyer in your corner can mean the difference between exploitation and empowerment, between dismissiveness and answers, between obstruction and justice.

Consulting an experienced medical malpractice attorney is prudent to understand their rights and legal options fully. Though the process is taxing, the law ultimately provides a remedy to those unjustly harmed by surgical mistakes.

At Husain Law + Associates — Houston Accident & Injury Lawyers, P.C., we specialize in helping victims of surgical mistakes get the maximum compensation they deserve. And so if you or a loved one need someone to help you get the justice you deserve, do not hesitate to contact us through our online form or by calling us at (713) 804-8149 to book a free consultation.

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About the Author


Husain Law Firm

Nomaan K. Husain is the founder of Husain Law + Associates — Houston Accident & Injury Lawyers, P.C., a Houston-based law firm specializing in Litigation, Immigration, and Aviation. He is Board Certified in Civil Trial Law and Personal Injury Trial Law, with law licenses in Texas, New York, and other jurisdictions. Mr. Husain serves in key community roles, including as Commissioner on President Biden's White House Commission on Fellowships and Chairman of Houston's Asian American Pacific Islander Advisory Board. He's been recognized with several awards, such as the Global Leader Award from the Houston World Affairs Council.

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