Chicago Surgical Malpractice Attorney
Acting on Medical Negligence
Each day millions of Americans visit doctors and other health care professionals. We trust that these trained personnel will have the knowledge and skills to treat our health issues properly. We also trust that their expertise in surgery will make us feel well again. Unfortunately, mistakes do happen and patients do sometimes get hurt.
During surgery, multiple health care professionals like doctors, nurses, and anesthesiologists are all working together. But a single mistake may lead to a lifetime of a pain, medical problems, or even death. In order to better understand surgical malpractice, you will likely find the topics below of great interest:
- Basics of surgical malpractice
- Common surgical mistakes, mistakes & injuries
- Never events
- Pre-operative and post-operative negligence
- Proving surgical negligence & medical malpractice
Any surgical procedure comes with risks of complications that may lead to serious injuries. Yet, many of these complications can be avoided if medical professionals follow the standards of medical care. Preventable medical errors are currently the third leading cause of death in America (only heart disease and cancer are ranked higher) and about 400,000 patients die each year from complications related to surgical errors.
Common Causes of Surgical Errors
No matter how experienced the health care professionals involved in your surgery are, mistakes still happen. These are the most common causes of surgical error:
- Inadequate pre-surgery planning: every member of the medical staff has to know the patient's medical history, including medication reactions. This helps them evaluate the risks of your surgery.
- Staff miscommunication: surgeries are performed by a health care team. Any lack of communication can lead to a serious injury. This includes not sharing medication dosage information or medical history red flags.
- Fatigue: medical professionals work long, hard hours. This can lead to mistakes that wouldn't have otherwise been made. Sometimes, intoxication also plays a role in such medical errors. Some medical professional have been found to take drugs to stay alert. This can lead to serious injuries.
- Incompetence: this is the most shocking type of medical error. Health care professionals who don't properly sterilize instruments or who use defective surgical instruments can cause major damage such as infections, sepsis, and other life-threatening problems.
When Does Surgical Malpractice Usually Happen?
- Generally, medical malpractice can happen almost anywhere or anytime that a doctor interacts with a non-doctor. A doctor does not even have to get paid by a patient for med mal to occur. It could even happen in the grocery store. A person might run into their neighbor who is a doctor and ask for their advice about how to treat a headache or an infection. If the doctor doesn't properly examine the patient and gives bad advice that leads to injury or death, under some circumstances, even such a minor contact might be considered to be actionable medical malpractice.
- But in the context of surgery, surgeons obviously do not perform medical procedures on neighbors in the frozen food section. So surgical medical malpractice generally occurs in one of the following three settings:
What if Someone Dies Due to Surgical Negligence?
In situations where surgical negligence leads to the death of a loved one, you may be able to pursue a wrongful death claim. This type of claim can help you recover financial compensation for the victim's pain and suffering before death, funeral bills, lost wages, and for other family needs.
Surgical negligence cases are some of the most complicated to handle. Because of the medical knowledge needed to prove your case, experts will have to be called to testify on your behalf. Mitchell S. Sexner & Associates LLC can help you build a strong case against those who've injured you or your loved one. Our Chicago medical malpractice attorneys are ready to fight hard for you. No fees are charged unless we are successful.
You can reach us at (800) 996-4824.
What is Surgical Medical Malpractice?
Surgical malpractice relates to an act or acts of negligence that occur within the surgical setting and which cause harm to the patient. Such malpractice occurs when these act or acts deviate from the standard of care in that professional's medical community. Most people would assume that such surgical malpractice relates only to mistakes that a surgeon makes. But although medical errors committed by the surgeon do constitute a large percentage of the surgical mistakes that are the subject of medical malpractice actions, they are by no means the sole source of errors.
Modern surgeries most typically involve a team of medical personnel in the operating room, performing individual parts to give a patient their best chance for an excellent medical outcome. If any one of these players fails to properly execute their role, and a patient is injured or dies in the process as a result, then surgical malpractice has occurred. Who are the various medical professionals who may be involved in one's surgery? They will likely include:
- The surgeon: This is the primary doctor who is in charge of the entire surgery. It is his or her responsibility to delegate tasks, direct the nurse and other assistants and monitor the work of those others involved. The surgeon must make certain that complications are avoided, that the surgery runs smoothly and that the result is successful and as planned. The surgeon must also closely coordinate his efforts with the anesthesiologist during the surgical procedure.
- The surgeon assistant: This is a secondary doctor who works alongside and assists the primary surgeon on an as needed basis with the surgical procedure.
- The anesthesiologist: As important as the surgeon is to the physical performance of the surgical procedure, without the anesthesiologist, no surgery could take place at all. That is because the anesthesiologist is responsible for selecting the appropriate sedation and anesthesia for the particular surgical application. Whereas some surgeries, especially those which are done in an outpatient setting, may require only a local anesthetic and little to no sedation, other surgeries will certainly require a general anesthetic and full sedation so that the patient does not awaken or even twitch during the surgery. The anesthesiologist is also responsible for monitoring of the patient's breathing. Although the patient may have met with the surgeon on a number of prior occasions, it is common for the patient to first meet the anesthesiologist just prior to the surgery, at which time questions will be asked and answered regarding allergies, food ingested, pre-existing medical conditions, etc.
- The anesthesia assistant and/or nurse: Whereas surgery once consisted of a single anesthesiologist who was present in the operating room from the first administration of anesthesia and sedation until the patient awoke after surgery, it is much more common these days for an "anesthesia care team" to be in place. This team consists of the anesthesiologist and either an anesthesia assistant or an anesthesia nurse. In high volume surgery centers or hospitals that process many patients, this allows the anesthesiologist to "handle" many patients at the same time. Although some in the industry feel that this team approach is the safest approach, others disagree and feel that the monitoring of sedation and anesthesia is too important to be left to a "team" member of lesser experience and education. That is because when problems arise in this area, there may be only minutes before permanent brain damage or death may occur.
- The circulating tech: This medical technician does not typically "scrub in" as he or she may be tasked with any number of jobs involving non-sterile items such as surgical gowns, medications and outer wrappings of instruments. The circulating tech may assist in bringing the patient into the operating room, opening items, retrieving items and completing paperwork.
- The scrub tech: During every major operation, it is typical for approximately two to four scrub techs to be present. These assistants must be "scrubbed in" and wear sterilized gloves and gowns as they are responsible for organizing all of the medical instruments and keeping track of such instruments during the surgery. They will anticipate which of these instruments that the surgeon will require and then pass them to the surgeon upon request. It is also part of their job to keep track of all the other incidental items in the operating room from sponges to gauze pads to needles, etc. In the event that a medical instrument or an item such as a sponge is left inside of a patient, it is a fair guess that the scrub tech is at least partially to blame.
- The nurses: During a surgical procedure, a registered nurse (RN) will act as the first assistant to the surgeon or surgeons. Nurses may act as a scrub nurse and scrub in, or as a circulating nurse, depending upon the need and the circumstances.
- The students: Many hospitals are teaching hospitals. Medical students or nursing students may be present during an operation. Sometimes, they will be allowed to assist in basic tasks as well.
No one will dispute that modern surgeries are complicated and technical in nature, and that they require extensive medical training and knowledge to perform successfully. No one will dispute that only such highly trained surgeons should be allowed to perform surgery on the public. Most people also know that no surgery ever can have a guaranteed 100% success rate and that doctors are only human as well. So mistakes do happen.
But despite that fact, doctors and surgeons are responsible for their actions, just like the rest of us. For instance, most of us were trained to operate an automobile. We were then tested before receiving a driver's license and since that day, have logged thousands of hours driving on public roads. So most of us would say that they are careful, knowledgeable, experienced licensed drivers. So what happens if one day, you make a little mistake and a car accident happens? Even though you are only human and it was unintentional, we all know the answer: you are responsible. Whether the money comes from your pocket or that of your insurance company, you must compensate the other party for damages and injuries that result. The same is true of surgeons. Very rarely does a surgeon purposely cause harm, but they are responsible for the harm that they negligently cause, just the same. According to the American Medical Association, these are the most common types of surgical errors:
- Leaving sponges or other medical instruments inside the body
- Wrong-site surgery
- Removing the wrong organ/appendage
- Improper placement of screws in bone fractures
- Damage to organs, nerves or blood vessels
- Anesthesia errors
- Performing unnecessary surgeries
- Negligent sanitary preparation for surgery
- Failing to follow up with a patient after surgery
- Discharging a patient prematurely
- Failure to construct a surgical plan
- Reckless decisions under pressure
Additionally, patients are often subjected to never events, which occur when a doctor commits an easily avoidable mistake. Never events include:
- Leaving sponges or other medical instruments inside the body
- Wrong-site surgery
- Removing the wrong organ/appendage
- Improper placement of screws in bone fractures
Medical malpractice as it relates to unnecessary or inappropriate surgery involves a surgical procedure that was not medically necessary for the patient in the first place. According to some reports, unnecessary surgeries may account for 10% to 20% of certain specialty surgeries nationwide each year, including many cardiac procedures, involving stents, angioplasty as well as pacemakers. Other types of surgeries that are often deemed unnecessary are cesarean sections, radical prostatectomy, gall bladder removal, many types of spinal surgeries, hysterectomies, and certain knee surgeries. When unnecessary surgeries take place on otherwise healthy patients, their risk increases of having other problems such as heart attacks, stroke, paralysis or infection. The unnecessary surgery may be the result of any number of events including:
- Intentional predators and insurance fraud – When unnecessary surgeries are recommended and scheduled, sometimes it is the result of purposeful, intentional, misrepresentation on the part of the doctor. After all, medicine is big money and some medical groups operate at a very high volume, much like a factory assembly line. Many procedures are reimbursed by the federal government through Medicare and Medicaid and for those medical providers who are unscrupulous and greedy, millions can be made at the expense and health of their trusting patients. In these cases, unnecessary procedures are not only immoral, but they are potentially criminal events that are investigated by the FBI and punishable by jail if proven. Many such doctors have been charged as such in recent years.
- Incompetent or improperly trained doctors – The percentage of doctors that purposely advocate unnecessary surgeries is likely very small. The vast majority of doctors that suggest inappropriate or unnecessary surgeries is more typically the result of medical providers that are well-meaning but lack the proper knowledge or training. Some are inclined to propose surgeries as a way of increasing their income or as a way of obtaining certain hospital privileges or memberships. This of course, is little consolation to the many thousands of patients each year who are injured as a result of such incompetence. Doctors simply should not perform or propose to perform surgeries for which they are ill-prepared, untrained, insufficiently trained, or too overworked to perform properly. When such surgeries are undertaken, patients are injured and people may die. In any event, doctors or surgeons who take part in unnecessary surgeries are committing medical malpractice and should be held responsible for their actions or inactions.
During surgery, the administration of anesthesia and/or sedatives is of vital importance. The anesthesiologist must properly determine what, when and how much to administer, and maintain a vigilant eye on the patient to make sure that the anesthesia is having the desired effect to reduce or eliminate pain, as well as to regulate the desired level of consciousness. When this type of surgical medical malpractice occurs and the anesthesiologist commits a medical mistake, the patient may wake up during surgery, become permanently injured, or suffer traumatic brain damage, coma or death.
Unsanitary Surgical Procedures
A constant danger inherent in every surgery is that of surgical infection. Whereas cleanliness was not always a concern throughout history, since the late 1800's, it has been well known that a clean operating room is vital to the patient's safety and greatly reduces the risk of infection or death. Every hospital has specific protocols in place to guarantee the cleanest and most sanitary environment possible during surgeries. Surgical instruments, surgical dressings, and every object that has any potential to touch a patient (including the surgeon, nurses and other assistants) must be sanitized or "scrubbed in" to reduce the risk. Some of the mistakes that may occur include:
- Failing to prescribe proper treatment for an infection
- Failing to sterilize surgical equipment or instruments
- Failing to monitor patient for post-operative infection
- Failing to replace damp or loose dressings
- Failing to replace dislodged, unsanitary or loose catheters
- Failing to wash hands properly
- Wearing scrubs outside hospital
When these protocols are ignored and a patient suffers an injury or death as a result, the hospital and medical personnel must be held responsible for such surgical medical malpractice.
General Surgical Errors
When people think about malpractice, they typically think about a specific surgical error that causes harm. It may be the result of a doctor or any member of the surgical team who is inexperienced, lacking in knowledge, confused, distracted, uncaring, hurried, or careless. Or it may involve a doctor who is highly experienced, but who makes a grave error in judgement under difficult circumstances, choosing one option over another, but which turns out to be the wrong option leading to death or serious injury. It may involve a doctor who mistakenly perforates, nicks or punctures an artery, organ, intestine, connective tissues or other internal body part.
Unlike other civil lawsuits involving negligence, surgical malpractice claims are always highly technical in nature. In Chicago, across Illinois and in many other states as well, it is required that the malpractice lawyer file an affidavit with the court attesting that the doctor failed to meet his or her standard or care in the medical community and that death or injury resulted. This is an affidavit that is signed by an expert in the medical community – not by the lawyer or the patient. Although some exceptions exist that allow the filing of this affidavit at a later time, the rule remains that a medical malpractice lawsuit may simply not be filed without one.
So in surgical malpractice cases, a lawyer will seek out a medical expert to review the hospital records thoroughly to determine if malpractice occurred. If the expert does not believe malpractice occurred, the lawyer might select another expert for a second opinion.
Winning a Surgical Malpractice Case
In order to be successful in any lawsuit alleging surgical malpractice, it is not enough to show that the patient was injured or that the patient was in better health before the surgery. An experienced surgical med mal attorney knows that the following must be shown:
- A doctor-patient relationship
- A deviation from the standard of care
- A clear link between the deviation and the injury or death
- Evidence of damages
Time Limitations for Filing
As with other types of medical malpractice, there are specific time limits that apply to filing of a claim. This is referred to as the "statute of limitation" period. If the case is not filed within this period, the injured person or their family (in the case of death) are forever barred from filing a claim. Forever. Although there are some exceptions including an extended deadline for children and minors, there are no exceptions for forgetting about the deadline, not knowing the deadline or taking too long to hire a lawyer. It is a firm deadline.
For many surgeries, there is an extended period of recovery or rehabilitation. Until some time has passed, it may be unclear whether the surgery was successful or whether additional injury or malpractice occurred. For that reason, the law in Illinois is generally that a lawsuit may be filed within two years of the time that the malpractice occurred, was discovered, or should have been discovered. Under some exceptions, longer time limitations may apply (called the statute of repose), so the lawsuit still must be brought within a specific time.
The statute of limitation period that applies to your case is incredibly important. It is vital that you and your malpractice lawyer quickly determine what exact date applies to your specific case, so that the deadline is not passed and your rights are protected.
Negotiating with the Insurance Company
Although an attorney will typically attempt to negotiate with the insurance company for the doctor or hospital before filing a lawsuit, it is common that a lawsuit will need to be filed for the insurance company to take the case seriously. This is generally true for a few reasons: First, the insurance company would like to examine the medical expert's affidavit to make sure that the attorney is, in fact, able to obtain an expert who agrees that malpractice occurred. If an affidavit cannot be produced, no case can ever be filed, so they may decide that there is no reason to settle if the plaintiff will not be able to file a case in the first place.
Second, there are many law firms that are all talk, no action, and merely try to settle all cases without any threat of doing a jury trial. The attorneys affiliated with Mitchell S. Sexner & Associates LLC know that this is not the best way to obtain the maximum recovery their clients deserve, and the insurance companies are well aware of our reputation for strong representation. If a fair settlement cannot be reached through pre-filing negotiations, a lawsuit will be swiftly filed and our attorneys will forcefully move towards a trial before a court of law. Millions of dollars have been recovered for our clients in court, in addition to millions that have been recovered through settlement negotiations.
Speak to a Surgical Medical Malpractice Attorney
Since 1990, the experienced attorneys affiliated with Mitchell S. Sexner & Associates LLC have helped countless patients and their families who have been injured by the negligent actions of surgeons, nurses and hospitals. Consultations are always free and you can reach a member of our staff 24 hours a day, including weekends and holidays, for free information. There is never any obligation and we always have time to answer your questions.
In the event that you would like our help, no attorney fee is ever charged unless we are successful on your behalf. We associate with some of the finest medical experts in the entire country in our efforts to protect your rights and hold negligent doctors responsible for the harm that they create. Millions of dollars have been collected for our deserving clients. Let us help you too. You can reach us at (800) 996-4824.
- History of Surgical Malpractice
- Unsterilized Medical Equipment May Constitute Surgical Malpractice
- 4 Tragic Yet Avoidable Surgical Mistakes
- Establishing the Causal Link Between Medical Malpractice and Injury or Death
- Wrong-Site, Wrong-Procedure, and Wrong-Patient Surgery - Agency for Healthcare Research and Quality