Malpractice and Surgery

What is Malpractice and When You May Have a Case

Three surgeons working in surgery/OR
During Surgery. Image: © Janice Airey/Getty Images

While most surgeries are completed without significant complications, there are surgeries that lead to extended hospital stays, more surgeries and on rare occasions, death.  A bad outcome from surgery does not necessarily mean that malpractice has been committed by the surgeon, hospital staff or anyone involved in the care of the patient, there are times when everything has been done as well as is possible and still the outcome after surgery is a poor one.


What is Malpractice?

Malpractice is the failure of a healthcare provider to perform their work at a reasonable standard of care.  This means that the question “what would a prudent healthcare professional do in the same set of circumstances?” is asked.  If the surgeon performed the procedure the way a reasonable and prudent surgeon should perform surgery, and the outcome was a bad one, it is reasonable to say that the surgeon wasn’t at fault.

Malpractice happens when a medical professional does not provide care at a reasonable level when compared to other healthcare professionals doing the same task. 

Malpractice Example #1 

The patient comes to the Emergency Room and is diagnosed with a ruptured appendix.  The surgeon on call immediately takes the patient to surgery, removes the appendix and works to remove as much of the infection that has spread through the abdominal cavity as possible.

  After surgery, the patient is extremely ill with a very serious infection despite treatment with appropriate antibiotics and spends two weeks in the ICU on a ventilator before being well enough to breathe on their own, and finally goes home a week later.  

This example is not malpractice, the surgeon performed the job as any reasonable surgeon would, and the infection is the result of the nature of the illness, not the work of the surgeon.


Malpractice Example #2

The patient comes to the Emergency Room and is diagnosed with appendicitis.  The surgeon on call takes the patient to the operating room and performs surgery to remove the appendix.  During the procedure, the surgeon nicks the nearby intestine, putting a small hole in it that is not noticed during surgery.  The patient starts eating again the day after surgery and begins to feel feverish.  Within several days, the patient is sick with a life-threatening infection and must be returned to surgery to have the damage repaired and as much of the leaking material removed from the abdominal cavity as possible. The patient goes to the ICU for two weeks, and spends an additional week in the hospital before going home to recover.

This example is likely to be considered malpractice.  No reasonable surgeon would cut the intestine, which will allow stool into the abdominal cavity after surgery.  Accidents happen, and ideally this accidental cut would have been discovered during surgery and repaired during the appendectomy procedure, preventing the complications that followed.

Malpractice Example #3

A surgeon uses a surgical instrument to engrave brand the patient’s uterus with “UK”, as he went to the University of Kentucky.  

The jury is out on whether this is malpractice.  This is a real case and the patient sued, as did nine other patients who were also branded, but these cases have not yet been settled.  Prudent surgeons do often place a dot on the uterus to make sure it is returned to its proper orientation in the abdomen at the end of certain procedures, but to place two letters 4-5 cm high is not necessary, and may lead to a verdict in favor of the patients, if they can prove they were harmed.

Malpractice Example #4

A surgical instrument is left in the patient during an appendectomy, and is found years later after the patient complains of ongoing abdominal pain.

Malpractice.  No prudent surgeon would leave a surgical instrument in the body of the patient. 

How to Protect Yourself From Malpractice

Choosing your surgeon and the facility in which the surgery is performed is key to preventing malpractice.  A skilled surgeon working in a facility that is less than optimal isn’t good enough, as malpractice can be caused by non-surgeon members of the staff.  Nurses can cause harm as well, through actions such as the  inappropriate use of medications, failure to provide care at the expected level of performance or failure to notify the surgeon when a complication is noted. 

Do You Have a Malpractice Case?

That can only be determined by a lawyer in your area.  Laws vary from state to state, as does the statute of limitations (how long you have to file a lawsuit).  It is important to remember that filing a lawsuit does not mean that malpractice is present, it means that a lawyer is willing to represent you.  Filing a lawsuit may mean that a jury finds that there was malpractice or it may mean that an out of court settlement is reached.  Still, there are many cases where the jury or the insurance company disagree, and refuse to provide any compensation to the patient. 


10 Things You Want to Know About Medical Malpractice. Forbes. Accessed September, 2015.

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