Undergoing surgery can be a stressful experience, but most people trust that their doctor will provide competent and professional care. Unfortunately, not all surgeries go as planned, and in some cases, preventable errors or mistakes can seriously harm patients. When a failed surgery is the result of medical negligence, you may have the right to file a malpractice claim to seek compensation for your injuries and hold the responsible parties accountable.
What Counts as Surgical Malpractice?
Not every failed surgery is a result of malpractice. Some procedures carry inherent risks; complications can occur even when the medical team does everything by the book. To successfully file a malpractice claim, you must prove that your doctor, surgeon, or another healthcare professional acted negligently and that their actions directly caused your injury.
Key Elements of Surgical Malpractice
To determine if your case qualifies as malpractice, these key elements must be present:
A Doctor-Patient Relationship Existed
This means the surgeon or medical professional had a duty to provide you care that complied with the accepted standards of practice or standard level of care.
Breach of the Standard of Care
The standards of practice or "standard of care" refer to the level of skill, expertise, and treatment that a reasonably competent medical professional would provide under similar circumstances. For example, if a surgeon performs an operation while impaired, fails to prevent a known surgical risk, or causes an injury to a part of the body outside of the surgical field, these actions could constitute a breach.
The Breach Caused Harm
You must show that the medical professional’s negligence was a cause of your injury. This might include infections, damage to surrounding organs, or nerve damage resulting from a error or mistake during surgery.
You Suffered Measurable Damages
You must also demonstrate that there was harm that resulted from the negligence, whether in the form of physical injuries, emotional distress, lost wages, or additional medical costs required to fix the error or mistake.
Examples of Surgical Errors That Could Indicate Malpractice
- Performing the wrong surgery or operating on the wrong site.
- Leaving surgical instruments, sponges, or tools inside the body.
- Damaging internal organs or nerves outside the operative field.
- Failing to provide proper post-operative care or instructions leading to complications.
- Failing to recognize post-operative complications and treat them in a timely manner.
- Errors during anesthesia administration that result in harm.
Your Legal Rights in a Surgical Malpractice Case
If you believe you’ve been injured due to a surgical error, you can seek compensation for your losses. Pursuing a malpractice claim allows you to hold medical professionals accountable while securing the financial resources you need for medical care, recovery, and more.
Compensation You May Be Entitled To
- Medical Costs: Covers past and future medical expenses related to the injury, including corrective surgeries, physical therapy, and rehabilitation.
- Lost Wages: If you’re unable to work due to your injuries, you may be compensated for lost income or reduced earning capacity.
- Pain and Suffering: Includes physical pain, emotional trauma, and diminished quality of life.
- Punitive Damages: In cases of particularly reckless behavior, you may be able to seek additional damages as a punishment for the healthcare provider.
Steps to Take When Filing a Malpractice Claim
Filing a malpractice claim involves navigating a complex legal process—but understanding the basic steps can help you approach it with confidence.
1. Obtain Your Medical Records
Your medical records are critical in proving negligence. These documents detail your surgery, treatment history, and any complications, providing evidence for your case.
2. Consult an Experienced Malpractice Attorney
Medical malpractice cases are often intricate and require legal expertise. An experienced attorney will review your case, identify whether malpractice occurred, and guide you on the best course of action. Additionally, they’ll work with medical experts to validate your claim by comparing your surgeon’s actions to the accepted standards of practice or "standard of care."
3. File a Lawsuit Within the Statute of Limitations
Every state has a time limit, known as the statute of limitations, for filing medical malpractice claims. In North Carolina, this is generally three years from the date of the surgical error, although there may be exceptions in certain circumstances. If a surgical error results in death, the time limit is generally two years from the date of death. It’s crucial to act promptly and consult with an attorney to determine the applicable time limit for your case and to ensure that your claim is filed within these deadlines.
4. Gather Evidence
Building a strong case involves collecting evidence such medical records, expert opinions, witness statements, photographs and videos. Your attorney will help compile this information to demonstrate the negligence and damages you suffered.
5. Engage in Settlement Discussions or a Trial
Most malpractice cases are settled out of court during negotiations with the malpractice insurance companies. However, your case may go to trial if a fair settlement cannot be reached. Your attorney will represent your interests throughout the process.
Challenges You May Face
Medical malpractice cases can be challenging for several reasons:
- Proving Negligence: Establishing that the surgical team’s actions breached the standard of care can be difficult even with supporting expert testimony.
- Insurance Company Pushback: Hospitals and surgeons typically have insurance companies with teams of lawyers who will try to minimize payouts.
- Complex Medical Evidence: Understanding and presenting the medical aspects of your case requires expertise, which is why hiring experienced legal representation is so important.
Why You Need a Skilled Attorney on Your Side
Malpractice cases are among the most complex types of personal injury claims. A knowledgeable attorney will handle the legal intricacies and advocate for your best interests so you can focus on healing. They will:
- Investigate your case thoroughly, including consulting with medical experts.
- Ensure all legal deadlines are met.
- Negotiate forcefully with insurance companies.
- Represent you in court throughout the process, including at trial if necessary.
Medical Malpractice Cases in Wilmington
At Daniel, Holoman & Associates LLP, we understand the complexities and challenges of medical malpractice cases. Our experienced team is dedicated to providing compassionate and effective legal representation to patients in Wrightsville Beach, NC, and surrounding areas. If you or a loved one has experienced a failed surgery and are considering legal action, we invite you to contact us today at (866) 380-2281 for a consultation. Let us help you navigate the legal process and seek the compensation you deserve.