For most people, surgery is a last resort. If you do need to have surgery, you might spend time getting a second opinion and making sure that you have the best surgeon possible. If you go through all of that only to have a bad outcome, you might be wondering what your options are.
The results of surgery are not guaranteed, so a poor outcome isn’t necessarily medical malpractice. However, if a doctor commits a surgical error, such as cutting a nerve, operating on the wrong area, or leaving a foreign object in the body, you might be able to file a personal injury lawsuit. Our Florida medical malpractice attorneys will fight to get you the compensation that you deserve for your medical bills, lost income, emotional distress, and more.
Based in Vero Beach, Gould Cooksey Fennell represents clients in medical malpractice actions throughout the Treasure Coast area. We work hard to get our clients justice for all types of medical negligence, including surgical errors. Contact our law offices today to schedule a free consultation with an Indian River County personal injury lawyer.
What Is Considered a Surgical Error?
When you have a medical problem, a doctor might recommend surgery as an option after conservative treatment fails. For example, if you have a herniated disk in your back, a surgeon might recommend a course of steroids and 6 weeks of physical therapy. If your symptoms don’t improve, then they may recommend surgery.
As part of this process, the surgeon will explain the procedure, alternatives to surgery, the risks of surgery, and the likely outcomes. With this knowledge, you can make a decision about whether or not surgery is right for you. This is known as informed consent.
One of the most important aspects of informed consent is the doctor explaining the risks of the operation and what you can expect in terms of recovery. Surgeons can’t guarantee a particular outcome, and there is always a possibility that the surgery won’t work. You might even have complications from the procedure.
Some complications are considered normal and may even be expected. However, there are some complications and bad outcomes that are entirely avoidable. They may be considered surgical errors.
If a surgeon makes a mistake that another similarly trained surgeon would not have made under the same circumstances, they may have committed medical malpractice. Surgical errors are a leading cause of medical malpractice lawsuits. They may include mistakes such as:
- Operating on the wrong body part
- Cutting or damaging nerves or blood vessels
- Performing the wrong procedure
- Anesthesia errors, including administering too little or too much medication
- Failing to address complications that occur during surgery
- Performing a surgical procedure that was not necessary
- Leaving a foreign object inside a patient
- Not providing proper post-surgery care
- Failing to properly monitor a patient after surgeryÂ
- Failing to sterilize equipment or follow sanitary protocols can lead to a hospital-acquired infection, such as MRSA
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Some of these surgical errors can lead to permanent disability or even death. If you have experienced an unexpected complication after surgery, it might be a sign that your surgeon was negligent in some way.Â
Our Vero Beach surgical error attorneys can help you decide how to proceed. During a free initial consultation, we will listen to your story and offer you advice on your legal rights and options. If you decide to hire our law firm, we will get to work right away to build a strong case for compensation.
When You Can File a Medical Malpractice Lawsuit for a Surgical Error
The human body is complex. When something goes wrong after a surgery or other procedure, it isn’t necessarily because of medical negligence. If the surgeon did not make a mistake, then you might not have a claim.
The key to medical malpractice lawsuits is proving that the at-fault doctor (defendant) did not meet the standard of care for the profession. This requires introducing evidence of the following 4 elements:
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- The defendant owed you a duty of care. This element is met by showing that you had a doctor-patient relationship. If you have a doctor-patient relationship, then the physician is required to provide care to you in a similar way as a doctor with the same skill and training would provide under the same or similar circumstances. This element is usually the easiest to prove because anyone who provides medical services to you owes you a duty of care. A surgeon who is performing an operation on you owes you a duty of care.
- The defendant violated the standard of care. This element requires evidence that your surgeon somehow deviated from what a reasonably careful practitioner in a similar situation would have done. This element can be the most difficult to prove. In Florida, before your attorney can file a lawsuit, they must perform an investigation and obtain an affidavit from a medical expert stating that the defendant violated the standard of care.
- The doctor’s failure to follow the standard of care caused you harm. For this element, the defendant may claim that other factors, such as pre-existing conditions, caused your injuries. The defendant may also argue that the injury would have happened even without the mistake. Your lawyer will analyze your medical records and work with experts to refute these types of arguments.
- You suffered losses as a result. If you were not injured by the medical negligence, then you do not have a viable claim against the physician. You will need to introduce evidence of your damages, such as medical bills and lost wages.
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Compared to some other types of medical malpractice, such as a misdiagnosis, surgical errors can be easier to prove. For example, if you were supposed to have an ACL repair on your right knee but the surgeon operated on your left knee, that is a clear error. Similarly, if the doctor left a surgical instrument or sponge inside your body, that is an obvious surgical error.
Other types of surgical errors are more complicated. For example, if a nerve was damaged during surgery, it may not be immediately apparent that it was caused by the surgeon instead of the underlying issue that necessitated the surgery. Similarly, if you acquire a post-surgical infection like MRSA, it may be hard to trace the cause since staph bacteria are present on everyone’s skin.
In any medical malpractice case, it is incredibly important to have smart, experienced counsel by your side. Florida’s medical malpractice laws are complex. If you do not meet a requirement set out in these laws, such as giving the surgeon proper notice of your intent to sue, then your case could be dismissed.
Our Vero Beach medical malpractice attorneys have represented clients in all types of medical malpractice claims, including those related to surgical errors. We understand how to dig into medical records, interview witnesses, and work with medical experts to get the evidence that we need to support your claim. We won’t back down from a challenge and won’t rest until we get you the compensation that you deserve for your losses.
Compensation in Florida Surgical Error Cases
If you experienced complications related to a surgical error, you can potentially file a lawsuit against the at-fault doctor and any other responsible party. This type of claim will typically go through the medical provider or hospital’s malpractice insurance.Â
Through a malpractice lawsuit, you can recover money for all of your losses. This typically includes both economic and non-economic damages.
Economic damages pay for your direct financial losses. Examples include lost wages, reduced earning capacity, medical bills, and future medical expenses. If you have any other expenses, such as the cost to get to and from appointments, adaptive devices, or therapies, this will be covered by economic damages.
Non-economic damages pay for your intangible losses. While you won’t get a bill for these losses, they are just as important as economic damages. They include things like pain and suffering, emotional distress, loss of enjoyment of life, loss of consortium, scarring, and disfigurement.
In Florida, there is a limit on the amount of non-economic damages that you can recover. For lawsuits against practitioners (such as surgeons), the cap on non-economic damages is $500,000. However, if a patient died from medical malpractice, is in a vegetative state, or suffered a catastrophic injury, the limit is $1,000,000.
For non-practitioners, such as hospitals, the cap on non-economic damages is higher. For most cases, the limit will be $750,000, although cases involving wrongful deaths and catastrophic injuries have a higher limit of $1,500,000. There is no cap on economic damages in Florida.Â
In more unusual cases, you can also seek punitive damages against a surgeon who harmed you through a surgical error. Punitive damages are reserved for cases where a defendant acted intentionally or recklessly. They are meant to punish someone who behaved badly, instead of compensating a medical malpractice victim.
Most surgical errors are not the result of intentional or reckless conduct. However, there may be situations where a doctor acted recklessly, such as by operating while drunk. Your Vero Beach medical malpractice lawyer can talk you through your options and advise you as to whether punitive damages may be available based on the facts of your case.
The value of any medical malpractice case can vary significantly based on the unique facts of your case. Typically, cases that involve more severe injuries and/or permanent disabilities will lead to a higher settlement or verdict at trial. Other factors will also come into play, such as the strength of the evidence in your case.
As experienced litigators and negotiators, our job is to get you top dollar for your claim. We will examine every possible avenue for recovery and will work hard to get you the money that you deserve for your losses. While most personal injury cases are resolved outside of court, if the insurance company won’t offer you a fair settlement, we will take your case to trial to get you maximum compensation.
Reach Out for a Free Consultation with a Treasure Coast Medical Malpractice Lawyer
Surgery can be scary enough without worrying about the possibility of the doctor making a mistake. If a surgical error does occur, you may be able to file a lawsuit against the responsible physician. Our law firm can help you get the money that you are entitled to for complications due to a surgical error.
At Gould Cooksey Fennell, we advocate for the rights of medical malpractice victims in Indian River County. Our legal team will take on the doctor and insurance company for you, leaving you free to focus on your health and well-being. We offer free initial consultations and never charge a fee unless we recover money for you. To learn more or to schedule a free consultation with a Florida medical malpractice attorney, give us a call at 772-758-8756 or fill out our online contact form.
