These are cases that involve an error made during a surgical procedure. All surgeries involve an element of risk which is why the surgeon is obligated to inform you of certain risks and to ensure you agree to undertake those risks unless of course the surgery is an emergency and you are unconscious or otherwise unable to provide such consent.
Surgical errors which may be successfully litigated are errors that go beyond the recognized risks of surgery. They are errors or mistakes which a reasonable doctor in similar circumstances would not have made. Even though a surgeon may have performed the same procedure many times, no two operations are the same – because no two people are the same. We are all individuals with different medical histories and different risk factors.
Standard Of Care
In essence, if the mistake did not fall below the standard of care, or you did not suffer a worse outcome as a result, there is no malpractice. The focus for any such claim may shift to the pre and post-operative care.
The relevant standard of care is that of a reasonably prudent doctor acting in similar circumstances. It is not a gold standard of care.
Examples of surgical errors include injuring a nerve during surgery, leaving a piece of surgical equipment inside the patient, operating on the wrong body part and cutting the wrong tissue.
Establishing the cause of the surgical error can be complex as most surgeries are a team effort while the patient is asleep on the table (and can therefore not give insight as to what may have occurred).
Causes of error may include:
- The incompetence of the surgeon (or other teams members – assistant surgeon, anesthesiologist, perfusionist, scrub nurse, etc);, scrub nurse, etc);
- Poor communication between surgical team members;
Fatigue of the surgeon (who typically work very long shifts);
- Impairment of the surgeon through drugs or alcohol
- Proving a surgery was performed in a negligent manner and linking that act to the worse outcome can be a very complex process. Typical arguments raised on behalf of doctors (which have varying degrees of success depending upon the facts of the case) include:
- Post-operative infection (a recognized risk of surgery) caused the stitching/stapling to fail;
- The post-surgical pain is “not real” – “it’s in the patient’s head”;
- The patient’s ability to heal post-operatively was compromised by his failure to quit smoking;
- The patient returned to activity sooner than advised/against the doctor’s orders;
- The surgery carried a risk of failure for which the surgeon cannot be held responsible.
Angela Price-Stephens has successfully pursued numerous types of negligent surgery including vascular repairs, open heart surgery, laparoscopic abdominal surgery, joint replacement, brain surgery, spinal surgery, hysterectomy, various paediatric surgeries and grafting. There are also an alarming number of incorrect amputations, be it the wrong breast, or the wrong foot which one CMPA defense counsel referred to as a “suboptimal result”. This is a reflection of the nature of the defendant who must never be underestimated.