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Liability for Malpractice in Elective Surgery

SurgeryMalpractice is any situation in which a medical professional makes an error that constitutes a breach of the standard of care, and causes harm to a patient. This includes during and after procedures that are not strictly necessary, including elective or cosmetic surgeries like gastric bypass or rhinoplasty. It is not uncommon for many individuals to harbor the erroneous belief that elective surgeries carry an assumption of risk beyond what a necessary surgery would, but this is manifestly untrue - a botched cosmetic surgery carries the same liability as, for example, an appendectomy or transplant.

Motivations to sue

It is important to understand, despite the existence of a duty of care, that there are some causes of action that will not be validated. For example, according to the most recent available data, approximately 13 percent of patients experienced complications after surgery in the year surveyed. Complications by themselves do not mean that there was medical error - there is an accepted rate of complication for any surgery - but laymen may not be aware.

When complications are abnormal, or when serious injury occurs, medical negligence may be alleged. Common issues include fluid build-up under the skin, scarring or skin breakdown, and nerve damage, which can lead to loss of sensation or tingling. If, for example, a patient experiences tingling sensations in a limb after surgery, that is considered part of the assumed risk; if they lose feeling altogether in that limb, it is likely more serious and more likely to be considered malpractice. Being able to show harm that is out of the ordinary for such a procedure is one part of building a case against your medical provider.

Establishing Negligence

Medical negligence can occur at any point during your time with a medical professional, though your treatment after surgery is the time when most malpractice actions have their roots, especially for procedures such as gastric bypass. A doctor or other medical professional has a duty of care toward their patients, and contrary to popular belief, that duty extends until the patient no longer requires their care. In California, the rule is that if your doctor’s conduct would not be duplicated by a doctor of similar age, experience and talent in the same situation, it is likely that they may have been negligent.

Be advised that establishing medical negligence requires you to show, in addition to a breach of the standard of care and harm, that the doctor’s conduct was the direct cause of your injury. The rationale behind this is to show both that you did not injure yourself, and also that there is not another possible defendant (or multiple defendants) who might reasonably be found liable for your injuries.

Contact a Medical Malpractice Attorney

If you have been harmed by a doctor’s negligence, you deserve to be heard. The experienced San Jose medical malpractice attorneys at Corsiglia, McMahon & Allard, L.L.P. are well-versed in California malpractice law, and we will be happy to advise you as to the viability of your case. Contact us today at (408) 289-1417 to set up an appointment. We serve San Jose, the Bay Area, and the counties of Santa Clara, San Benito, San Mateo, Monterey and Alameda.

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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.