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Common Types of Surgical Malpractice

Surgery Doctors at Operation RoomGoing into the hospital for surgery is no small endeavor. It is not unreasonable to expect a certain standard of care and professionalism - but it does not always happen. Sometimes, surgery goes wrong, and in some of those cases, the harm done is compensable. Before going ahead with a lawsuit that may not prevail, it is best to understand what is actionable and what is not.

Statistics on Surgical Malpractice

Certain occurrences where negligence is self-evident, such as leaving an object in a patient’s body or operating on the wrong site, are referred to as “never events.” The most recent available data from Johns Hopkins University states that these happen an average of 4,000 times per year - though this estimate is thought to be on the low side - and very few of them are ever litigated.

Surgical malpractice claims, both involving “never events” and other, less obvious forms of negligence, are among the most expensive and most often settled in the United States, as well (as opposed to going to trial). However, they are also among the types of cases that take the longest to reach a settlement - 2002 data from the U.S. Department of Health & Human Services show a mean time of 5.59 years between filing a suit and eventual payment of compensation. Thus, the odds are against a plaintiff from the beginning that they will prevail, or that they will be paid when they do prevail.

What is the Standard of Care?

In a medical malpractice case, it must be shown by the plaintiff that the defendant medical professional breached the prevailing standard of care - in other words, that they conducted themselves in a different way than a doctor of similar age, experience and talent would have in the same situation. A breach of the standard of care is usually alleged to have been negligent, and generally to prevail, a plaintiff must show negligence on the part of the medical professional. To do this, one must show (1) a breach in an existing duty of care (such as the one that exists by law in California between patient and doctor); (2) that the defendant’s conduct was the direct cause of plaintiff’s injuries, with no subsidiary cause supervening; and (3) a showing of true harm - minor harm such as bruises, for example, is not considered sufficient to mount a negligence claim.

One important thing to remember, however, is that California law states that any medical professional may be guilty of malpractice, not only surgeons. When discussing malpractice related to surgery, one must also take into account the pre- and post-operative care the patient received. The standard of care for a nurse or physician’s assistant is not going to be quite the same as for a medical doctor, but either way, it must be objectively appropriate.

Ask a Professional for Assistance

When you go to a hospital for surgery, you accept the potential risk of some complications. However, sometimes things happen that are not within reasonable expectations, and you may be entitled to compensation if you have to suffer through them. The zealous San Jose medical malpractice lawyers at Corsiglia, McMahon & Allard, L.L.P. have years of experience with surgical malpractice cases, and are ready, willing and able to answer your questions and help to guide you through the lawsuit process. Call our office today at (408) 289-1417 to schedule an appointment. We serve San Jose, the Bay Area, and the counties of San Benito, Santa Clara, San Mateo, Alameda and Monterey.

Client Reviews
My experience with Attorney Brad Corsiglia during my recent medical malpractice case was nothing short of amazing given the very stressful circumstances. I was fortunate to find Brad highly recommended from a mutual contact and from the very beginning of the process, Brad was truly engaged and knowledgeable in understanding my case and providing input on what avenues were available to me. Michelle M.