A Study has concluded that one of every ten patients who died within 90 days of surgery did so because of a preventable error, and one-third of the deaths occurred after the initial hospital discharge.
--(New AHRQ Study Find Surgical Errors Cost nearly $1.5 Billion Annually. October 2012. Agency for healthcare Research and Quality, Rockville, MD)
What this study means is that, not only are preventable surgical errors a substantial cause of deaths that occur after surgery, but that those errors are often not discovered and addressed while the patient is still in the hospital. Research studies and quality-reporting initiatives around the country show that 15-25% of people who are discharged from the hospital will be readmitted to the hospital within thirty days, and that many of these readmissions are preventable.
A “surgical error” is any error that occurs during surgery—it is a failure to provide medical treatment in accord with an accepted medical standard of care, and the substandard care must cause harm to the patient. In other words, if the mistake did not fall below the applicable standard of good medical care, or if the patient suffered no harm as a result of the mistake, there is no malpractice.
All surgeries involve some risk. For this reason, doctors and/or hospitals require a surgical patient to sign a form before the surgery, which states that the patient understands that the surgery proposed involves certain known risks. This is called “informed consent.” If harm befalls the patient as a result of the surgery which was a known risk of the procedure, and the harm was not the result of negligence, then the patient will not receive compensation for the harm because he or she understood that the harm was such that it could not be prevented, despite all reasonable precautions. However, sometimes a known risk of a surgery does result from a healthcare provider’s failure to adhere to the standard of good medical care. In that case, the patient may receive compensation because she did not assume the risk that she would be injured by medical malpractice. In other words, a known risk will not by itself insulate a healthcare provider from responsibility for the harm that is negligently caused.
Surgical errors are far too common, and incredibly expensive. Preventable errors burden the resources of a healthcare system already strained to its limits, incur additional costs, and result in higher insurance premiums that we all have to pay. Successfully litigating a case involving a surgical error rightfully puts the financial cost of the mistake on the party responsible, and theoretically should not cause higher insurance premiums to consumers, or increased demand of social or welfare programs that rely on our tax dollars.
Often, the real reason for a surgical complication is not immediately evident from the medical record. Some surgeons are loath to admit error, and do not fully disclose their errors in the surgical report. Surgeons sometimes refer to less than competent surgical procedures as “surgical mis-adventures.”
Much litigation revolves around laparoscopic surgery (also called “keyhole surgery”), which may be preferable to open procedures in certain cases. Laparoscopy involves inserting a brightly lit scope and tiny instruments into a body cavity through small incisions, rather than making a large incision and fully exposing the surgical field to the naked eye as in traditional surgery. The benefits of laparoscopic surgery generally weigh in favor of the patient rather than the surgeon—the patient experiences a quicker recovery from surgery and also less pain during recovery, because a large incision is avoided. With less pain, less pain medication is needed, hospital stays are shorter, and a quicker return to work and other activities is expected. A smaller incision means a smaller scar after surgery, and also possibly a lesser risk of post-surgical infection than an open procedure. Surgical error may result from the failure to convert a laparoscopic procedure to an open procedure in a timely fashion when complications such as excessive bleeding occur. A surgeon performing abdominal or pelvic surgery may have a limited view through the laparoscope when excessive bleeding occurs. Rather than converting to an open procedure, they will occasionally plod through with obscured vision and damage adjacent structures such as ureters in the process. It is also possible to inflict internal injury at the time that the laparoscope is inserted into the patient, such as when too much force is used to puncture the abdomen, or because the surgeon has a reduction in depth perception or impaired hand-eye coordination.
Laparoscopic surgery restricts a surgeon’s view of the entire surgical field. Surgical error may result from the surgeon failing to adequately identify and protect surrounding structures such as nerves, blood vessels, or ducts. A hurried or distracted surgeon may not take the time necessary to carefully explore the surgical field, and may cause serious or even irreparable damage to surrounding structures. Likewise, a surgeon may inadvertently cut a surrounding structure, such as cutting the common bile duct during a cholecystectomy (gall bladder surgery) and fail to recognize the mistake before closing the surgical site. This failure can lead to bile draining directly into the peritoneal cavity, causing great injury or death if not promptly detected.
Burns may be caused by a surgeon’s or other provider’s negligence. Instruments may be removed from an autoclave and dropped on the patient, causing external burns. The negligent use of an electric cautery device may cause internal burns to the intestine, uterus, or other organs. While some cautery burns are just unfortunate risks of surgery, physicians may be negligent for failing to recognize these complications, leading to further injury such as peritonitis.
In order to determine whether there has been negligence, an experienced medical malpractice attorney will carefully examine not only the surgical record, but will also scour the medical record for other clues that the surgeon failed to follow the prescribed standard of care. Once the medical record is thoroughly reviewed, and the attorney believes a strong potential for malpractice exists, the case is sent for review by a surgeon of like specialty, usually out of the state, who is known to give unbiased opinions. If the review is favorable, and there are sufficiently large damages to warrant litigation, the matter may be pursued.
While complications following surgery are not necessarily proof of malpractice, it is always reasonable to investigate whether complications or poor surgical outcomes were the result of a surgeon’s error. A surgery that causes an unexpected injury, or even death, should be investigated for possible malpractice. Because of the extensive experience at Keith S. Douglass and Associates, LLP, and because of Attorney Douglass’s unique medical knowledge, we can often determine early on if a particular set of facts warrants further investigation and retaining a medical specialist for a formal standard of care review.
If you believe that you or a family member had surgical complications that were unexpected, please call us to discuss the matter. It may be that the complication was just a known risk of the surgery, but it may also be the result of a surgeon’s negligence. Only by calling will you know if compensation is potentially available.
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