All surgeries carry some level of risk to the patient and there are no guarantees when it comes to fixing health issues and ailments. Doctors do not wield magical god-like powers; they’re human. They use their knowledge and skills and practice to the best of their ability to heal their patients. However, there are times when a surgery goes wrong and a patient may end up worse off because the doctor made a surgical error. If you’re suffering from an injury after surgery because your doctor failed to meet an acceptable level of proficiency and professionalism, then it’s possible you have a medical malpractice claim on your hands. Medical malpractice cases can be difficult to win and it’s important to know whether suing for surgical error will be worthwhile. What it boils down to is whether or not the doctor’s performance met the proper standard of care.

While you can definitely sue for surgical error, you can’t just sue because the surgery didn’t work out the way you wanted. If your doctor does everything a reasonable physician would do under the same circumstances, and you come out of eye surgery with worse vision than you had going in, well that’s just the way it is. However, if your doctor makes an error no reasonable physician would make under the same circumstances, and you lose some or all of your vision, then you can prepare to sue for surgical error.

Generally, medical malpractice claims are focused on proving a doctor’s negligence. To prove that surgical malpractice occurred, you must first show the existence of a doctor/patient relationship. If you were seen and treated by the doctor directly, proving this relationship is straight forward; however, if the surgeon consulted about your care, but didn’t see or treat you directly, proving that relationship may be more difficult. Once a doctor/patient relationship is clear, you have to prove your doctor’s negligence. Basically, you need to show that, in the same or similar circumstance, under the care of a competent doctor, you would not have been harmed. In order to show this, you will need an opinion from a medical expert that the surgeon’s care fell below the accepted standard of care.

Even if it is clear the doctor wasn’t the greatest doctor and did not live up to the standard of care expected from him, you still have to prove that the doctor’s negligence caused you harm. Any number of things can go wrong in a complicated or difficult surgery. If the doctor acted negligently, but there is no causal connection between that negligent conduct and your injury, then you won’t be able to recover for surgical malpractice. If a surgery is particularly risky, it is difficult to prove that what the surgeon did or failed to do caused you harm. In that circumstance, it is difficult to prove that the outcome would have been different with another doctor? Sometimes, even when the surgeon’s negligence is clear, it is difficult to prove that the bad outcome resulted directly from that negligence.

In addition to surgical errors, there are other types of negligence which qualify as medical malpractice. If a doctor prescribes the wrong medication or dose for treating a condition, or prescribes in a manner which is inconsistent with the manufacturer’s instructions or warnings, and that medication causes you harm, you would likely have a case. A doctor may also be negligent if he fails to adequately inform you of the risks associated with a test, procedure, or surgery or if he fails to adequately advise you of the acceptable alternatives. You should be aware of all risks, benefits, and alternatives to the procedure and give written consent beforehand. If, during surgery, you suffer harm that the surgeon failed to warn you about, you may be able to prove malpractice against the surgeon, even if you can’t prove he performed the surgery negligently.

If you can clearly show that the doctor’s negligence caused you harm which you would not have suffered otherwise, than it is time for you to speak with an attorney about pursuing a medical malpractice claim. Now, before you head to court, your state may have established a process to mediate or resolve surgical malpractice claims. In Massachusetts, medical malpractice claimants must now send written notice of the claim to the health care providers at least 182 days before filing a complaint. The health care provider then has 150 days to send a written response . This provides a framework for patients and doctors to evaluate the claim and possibly reach a settlement without going to court.

Surgical malpractice claims have to be brought soon after the injury. If you surpass the statute of limitations, then your case will be dismissed. Depending on the laws of the state in which the malpractice occurred, the statute of limitations for suing varies between six months and three years. Likewise, depending on the laws of the state in which the malpractice occurred, the time when the countdown begins may vary. In many states, the countdown begins when the malpractice occurred and, in other states, the countdown begins when the injured person discovers the malpractice or the harm resulting from the malpractice. In situations where treatment was on ongoing, the countdown may not begin until the last date of treatment. Because there are so many variations from state to state, and the laws frequently change, you should always consult with a surgical error attorney to determine if you have time to file a law suit.

Hiring a knowledgeable and qualified lawyer for surgical error claims is essential to navigating the complex rules of medical malpractice. Do your research and find a lawyer who has experience with surgical malpractice. The right lawyer will make sure you’re justly compensated for your doctor’s surgical mistake.

Disclaimer: The content of this article is a general guideline made available for educational purposes only and is not intended to be used as legal advice for the reader's specific situation. By reading our blog and website content, the reader acknowledges the above and understands there is no attorney-client relationship created between you and Raipher, P.C. through this content. To get specific legal advice, we encourage you to book a free consultation with one of our attorneys to clarify the legal aspects of your situation.

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