Determining if Surgical Complications Resulted from Malpractice
Doctors often describe minor surgeries as “simple procedures.” But nothing is ever simple when it comes to protecting a patient’s health. Even a “routine” surgical procedure must follow a host of regulations, standards, and guidelines to minimize the risks to patients. And even then, there is never any guarantee that surgery will be free from complications.
Not every “complication” that occurs during or after surgery is medical malpractice–at least not from a legal standpoint. Indeed, many complications simply reflect known risks based on either the nature of the procedure involved and/or the patient’s pre-existing condition. So even if the surgical team does everything by the book, there can still be a bad outcome.
All that said, when mistakes do happen, the patient has a right to know the truth. And if preventable medical mistakes do lead to complications, then the patient does have the right to seek compensation for their injuries. This is especially true when the effects of a complication do manifest themselves for weeks or months–and sometimes even years–after the mistake was made.
What Are the Most Common Types of Complications Arising from Surgery?
The word “complication” can be broadly used to describe any unexpected or negative event that results from a surgical procedure. Some complications are minor and clear themselves up without any long-term impact on the patient or their health. Other complications can lead to additional medical problems that require additional treatment–including possible surgery to correct the mistakes made during the prior surgery.
Some complications are the result of what legal and medical professionals refer to as “never events.” As the name suggests, these refer to complications that should never happen in a properly run surgical center or health care facility. Put another way, these are not complications that should arise from the normal risks of a surgical procedure.
Here are a few common examples of never events that lead to surgical complications:
- The surgical team operates on the wrong patient.
- The surgical team operates on the right patient but the wrong site–e.g., a neurosurgeon performs a procedure on the wrong portion of the patient’s spine.
- The surgical team performs the wrong procedure on the patient–e.g., performing an appendectomy on a patient who was in the hospital for a heart valve replacement.
- Giving the patient the wrong blood type during a procedure.
- Leaving a surgical instrument or medical device inside of the patient.
There are other examples of surgical complications that arise from reckless or negligent conduct, such as:
- A patient develops an infection at their surgical site due to unsanitary conditions in the surgical center.
- A patient is injured due to a mistake made by the surgeon during the procedure, such as puncturing an organ.
- A patient receives the incorrect anesthesia–or has a severe allergy to anesthesia that was not properly discovered by the medical staff beforehand–leading to a loss of oxygen to the brain.
- The patient receives a medical device, such as a pacemaker, that turns out to be defective in some way.
How Does a New York Court Decide if a Surgical Complication Was Malpractice?
As previously noted, not every surgical complication constitutes malpractice. The legal test for malpractice is not, “Did the surgeon make a mistake?” Rather, it is whether or not the surgeon–and all of the health care professionals who participated in the procedure, for that matter–provided an adequate “standard of care” based on the standards for their profession.
Essentially, when evaluating a medical malpractice case a court will look at several things:
- Would a minimally competent doctor have taken the same steps under the same or similar circumstances?
- Could a competent healthcare provider have reasonably foreseen that their actions could injure the patient?
- Did the healthcare provider’s actions actually cause the patient’s injury–i.e., would the injury have occurred before the surgery?
- What specific losses did the patient suffer as a result of the surgical complication?
Each question must be answered with appropriate evidence for a patient to succeed in a medical malpractice claim. For example, plaintiffs often need to provide expert testimony from other qualified surgeons who can explain precisely how the defendant surgeon deviated from the accepted standard of care for their profession. Concerning damages, the plaintiff must provide proof of their out-of-pocket losses, such as bills for additional medical care or rehabilitation required as a result of the original surgeon’s mistake.
How Long Do You Have to Sue a Surgeon for Medical Malpractice?
The State of New York imposes a 30-month statute of limitations in medical malpractice cases. This means you have roughly two-and-a-half years to sue a doctor or healthcare provider if you have been injured due to a surgical complication. But this is further complicated, as it were, by the fact that many surgical complications are not immediately apparent to the patient.
For instance, say a surgeon accidentally left a surgical instrument inside of a patient and closed them up. The patient might now know anything was amiss until months later when they start showing symptoms of a possible infection or similar complication. In this scenario, New York law provides that you have 1 year from the date you discovered the problem or learned facts that “would reasonably lead” to you making such a discovery. This one-year period applies even when the normal 30-month limitations period has already expired. Additionally, in cases where the victim of the alleged medical malpractice was a minor, New York extends the statute of limitations until the victim turns 18, although in no case may a lawsuit be filed more than 10 years after the alleged malpractice.
Speak with a Qualified NYC Surgical Malpractice Attorney Today
Surgery is a frightening enough experience. When something does go wrong, you are understandably scared and angry. Above all else, you want answers. An experienced New York medical malpractice lawyer can sit down with you and review your case.
If you need answers, schedule an initial consultation with a member of our medical malpractice team today.