What is Surgical Malpractice?

Surgical malpractice occurs when the surgeon performs surgery in a way that does not comply with good and accepted medical standards of care.

Examples of surgical malpractice include:

  • Transecting a blood vessel during surgery,
  • Failing to remove a surgical instrument or sponge from the patient’s body,
  • Failing to diagnose and treat internal bleeding,
  • Over-administration of anesthesia

If you or a loved one have been injured by a negligent medical professional during or after an operation, you may need to consult a surgical malpractice lawyer to protect your legal rights.

How We Evaluate the Merit of a Surgical Malpractice Claim

The first question is whether there was a deviation from good and accepted medical standards of care during—or after—the operation.  For example, during a nephrectomy (surgical removal of a kidney), the surgeon transects the inferior vena cava (largest vein in the human body) and the patient bleeds to death.  Transecting the inferior vena cava is not a known complication of surgery.  This is a clear deviation from the standard of care by the surgeon.

The second question is whether the deviation from the standard of care was a substantial factor in causing harm or injury to the patient. If the surgeon transects the inferior vena cava, and the patient bleeds to death, there is obvious harm to the patient.  If the patient survives and has no discernible long-term injury, then the relatively modest damages will not justify the substantial expense of a medical malpractice lawsuit. Proving that the patient was harmed by surgical negligence is a critical question in all surgical malpractice claims, and without the.

Assistant Surgeon Malpractice:

The assistant surgeon will help expose the surgical site with the use of retractors and clamps. The assistant surgeon may be a medical resident or a mid-level provider, such as a nurse practitioner or physicians’ assistant.  The assistant surgeon may be liable for perforating a blood vessel or failing to timely diagnose and treat internal bleeding.

Anesthesia Malpractice:

The anesthesiologist may be liable for the improper administration of anesthesia.  The excessive administration of anesthesia can lead to cardiac arrest.

The Anesthesiologist’s Intra-Operative Report will document the patient’s vital signs every 5 minutes, including the patient’s blood pressure, heart rate, respiratory rate and temperature.  If there is a change in the patient’s vital signs, the anesthesiologist should inform the surgery and a decision will be made whether it is safe to continue the operation.

Nursing Negligence:

The circulating and scrub nurses will assist the surgeon by counting the surgical instruments and sponges and confirming that nothing remains in the patient’s body that was not intended to be left. When a surgical instrument or sponge remains in the patient’s body following surgery, they are known as a “foreign object”. A foreign object should never be left inside the patient’s body following surgery and when this occurs, there has been a deviation from good and accepted medical standards of care.

What is a Surgical Complication?

A surgical complication is a bad outcome from surgery, e.g., a back operation that results in increased pain.  A bad surgical outcome does not necessarily indicate that there was surgical negligence.  A bad outcome can be a rare, but known complication, of an operation.

The surgeon will most likely defend the claim by asserting that the bad surgical outcome was a known complication of surgery, and that the patient acknowledged and consented to the risk by signing a Consent to Surgery.

The Consent to Surgery will commonly contain a long list of bad outcomes of surgery, including paralysis, infection, nerve damage and even death. Frequently, the Consent to Surgery is so generic and broad that it provides no useful information for the patient.  In some rare situations, such as ophthalmological procedures (e.g., surgical removal of a cataract), the Consent to Surgery might explain the bad outcomes that can occur.

Internal Bleeding as a Surgical Complication

A common fact pattern in a surgical malpractice case is that the patient begins bleeding during an operation and the surgeon is either slow to diagnose, or fails to treat, the bleeding.  An intra-operative bleed is relatively common, but can have fatal consequences when there is a delay in the diagnosis and treatment of the internal bleeding.

Surgeons, assistant surgeons and the anesthesiologist must closely monitor changes in the patient’s blood pressure, heart rate and respiratory rate to check for signs of internal bleeding.  When internal bleeding is suspected, the surgeon should attempt to identify the source of the bleeding and control the bleeding by packing and applying pressure to the site of the bleeding artery or vein.

What is a Post-Surgical Complication?

It is not uncommon that patients will be prematurely discharged from the hospital after an operation.  The patient should be seen and examined by the attending physician—typically the surgeon—on the day of discharge from the hospital. If the patient has any unusual symptoms or complaints, the patient should remain in the hospital for monitoring or observation.

Blood Clots as a Post-Surgical Complication

A post-surgical complication frequently involves internal bleeding or blood clots. The formation of blood clots is particularly common in orthopedic surgery, such as a total knee or hip replacement, where a relatively high percentage of patients develop blood clots.  Following surgery, blood clots can occur due to the immobility of the patient as well as the propensity of the body’s platelets to form clots at the site of the surgery.

Blood clots typically begin in the deep superficial veins of the leg (known as deep venous thrombosis) and can travel to the pulmonary arteries, where they pose a high risk of death.  Blood clots in the pulmonary arteries—known as a pulmonary embolism—can shut off the flow of blood to the lungs and this can result in shortness of breath and death.

Taking precautions to prevent blood clots from traveling from the legs to the pulmonary arteries is one of the primary goals of treating patients following surgery. Blood clots in the legs can be detected with a non-invasive test known as a venous duplex ultrasound.

Preventative measures include compression stocks on the patient’s legs and when necessary for unilateral or atypical leg pain, the patient should be given anti-coagulation medication (a/k/a blood thinners) intravenously. Blood thinning medication will reduce the likelihood of the formation of blood clots and can dissolve existing blood clots.

What Medical Records are Needed to Evaluate Your Claim

We begin the evaluation by obtaining medical records. More specifically, the most important parts of the patient’s medical records are the following:

  • Operative Report
  • Consent to Surgery
  • Anesthesia Intra-Operative Report
  • Consultation Reports
  • Discharge Summary

These records will help determine what happened during the operation.

How You Can Get the Medical Records

Under a federal law known as the HITECH Act of 2009, you have the right to insist upon the production of the medical records in electronic format, e.g. pdf or compact disc containing the medical records.  In most cases, you will not be charged more than $6.50 for the electronic medical records (known as the “Patient Rate”).

It is common that health care providers are not aware of your rights to obtain the medical records in electronic format.  If the health care provider refuses to provide the medical records in electronic format, you should:

  • Ask to speak with the supervisor in the medical records department of the hospital;
  • File a complaint with your State’s Department of Health; and
  • File a complaint with the Office of Civil Rights of the U.S. Department of Health & Human Services.

The Office of Civil Rights (“OCR”) of the U.S. Department of Health & Human Services handles violation notices for the federal privacy law known as HIPAA. You can file an electronic complaint with the Office of Civil Rights at https://www.hhs.gov/hipaa/filing-a-complaint/index.html

Your Rights to Obtain Medical Records in a Death Claim

If the patient has died, a distributee of the decedent’s estate possesses the legal right to obtain the medical records, pursuant to New York law. A distributee of the decedent’s estate is usually the surviving spouse and/or children and if there is not a surviving spouse or children, siblings or parents.

You do not have to be appointed as an estate representative by a probate court in order to obtain the decedent’s medical records.  As long as you possess a certified death certificate, you are legally entitled to the decedent’s medical records. The healthcare provider may require that you sign a form entitled “distributee certification form”, wherein you represent that you are an authorized distributee (e.g., surviving spouse, child) of the decedent.

Your Rights to an Original Chart Review

The Health Insurance Portability and Accountability Act of 1996 (HIPAA)(a/k/a HIPAA Privacy Rule) establishes individual rights with respect to health information.  The HIPPA Privacy Rule provides individuals with a legally enforceable right to see and receive copies of their medical records. This includes the right to inspect or obtain a copy of their medical records as well as to direct the healthcare provider to transmit a copy to a designated person or entity of the individual’s choice.

Individuals have a right to inspect and copy their medical records regardless of whether the records are maintained in paper or electronic format, remotely, or archived or where the medical records originated from another healthcare provider.  An original chart review will ensure that you possess a complete set of medical records. You cannot be charged a fee for inspecting the medical records.

You can request an original chart review from the custodian of the medical records in the health care provider’s medical records department.  You can conduct the original chart review in person or with a release authorization, your medical malpractice attorney (or a designated representative) can conduct the original chart review on your behalf.

There may be medical records in more than one department of the hospital.  For example, imaging films (e.g., x-rays, CT scan, MRI, PET scan) will be kept in the radiology department and billing records are usually kept in the healthcare provider’s billing department.  You may need to make separate requests to the medical records, radiology, and billing departments of the hospital. Call a dedicated surgical malpractice lawyer right away for help.