You might have been briefed on the risks of your surgical procedure in the appointments leading up to it. But there is a difference between experiencing complications because of your age and medical history versus incurring injuries and damages because of your surgeon’s carelessness. The latter might just be considered medical malpractice. Read on to discover whether your surgical error might constitute a lawsuit and how a seasoned New York City surgical errors attorney at Mark L. Bodner, P.C. can help you build a comprehensive legal strategy.
What Is a Surgical Error Under New York Medical Malpractice Law?
Though the thought of enduring a surgical error can be scary, it’s important to understand that not all complications are malpractice. In some instances, a surgery may not be successful, due to no fault of the medical team, but rather because of inherent risks and unavoidable complications. Studies estimate that 10% of avoidable patient harm occurs in a surgical setting worldwide, making this a widespread issue.
Definition
A surgical error is any preventable mistake that occurs during surgery due to the negligence of a medical provider, rather than an unavoidable medical risk.
Who Can Commit a Surgical Error?
Generally, any party responsible for your care and treatment can commit a surgical error. This includes:
- The surgeon
- The anesthesiologist
- The nursing staff
- The staff at the operation facility
Under What Circumstances Does a Surgical Error Constitute a Lawsuit?
No matter when this error occurred or who is to blame for it, you must strongly consider pursuing a medical malpractice claim. Generally, in order to bring about a lawsuit, your surgeon or other medical provider must have breached the standard of care expected of them. This essentially means they deviated from the reasonable care any other competent physician in the same circumstances would have provided.
It’s critical to understand that this differs from complications with a surgery, which are undesirable results often unavoidable and cannot be prevented. However, your surgeon is still responsible for managing inherent risks when operating.
Common Surgical Errors That May Justify a Lawsuit
Without further ado, you may have grounds for a lawsuit under the following conditions:
- The procedure was unnecessary or incorrect
- The surgeon operated on the wrong body part
- An instrument was left inside your body (tools, sponges, cloths)
- The surgery did not treat complications
- An organ was perforated
- The surgery was delayed
- The medical team failed to follow protocol, leading to a surgical site infection
- There were errors in anesthesia administration
Do I Have a Medical Malpractice Claim?
If you believe you are the victim of medical malpractice as a result of a surgical error in New York City, you’ll need to ensure that you can prove the elements of malpractice. This includes:
- A provider-patient relationship existed (and thus you were owed duty of care)
- The provider failed to uphold the standard of care required of them as a medical professional
- The breach of this standard resulted in injury to you
- The injury caused measurable damage and financial harm
What Negligence Looks Like in a Surgical Error Lawsuit
Once you confirm that you were made a victim of a negligent surgical error, you may proceed forward with your medical malpractice lawsuit. As a plaintiff, you must demonstrate that the surgeon, or a nurse or anesthesiologist, exhibited some type of carelessness during or after your procedure.
Provider Impairment or Fatigue
The surgeon, nurse, or anesthesiologist was extremely fatigued or under the influence of drugs or alcohol while performing your procedure.
Inadequate Training
The staff performed a procedure that they were unqualified and inadequately trained to perform
Communication Failures
Poor coordination and a lack of communication between the surgical team can result in serious errors and injury
Hospital Error
The hospital failed to provide a sufficient amount of staffing (i.e., nurses or anesthesiologists) throughout your procedure or failed to ensure that the medical team was properly supervised while caring for you.
How Long Do I Have to File a Surgical Error Lawsuit in New York?
In New York, victims of medical malpractice typically have two years and six months to file a claim against a negligent party. Failure to file within this statute of limitations will result in you losing your right to recover compensation for the damages you’ve incurred.
Exceptions to This Rule
While the deadline for a medical malpractice claim is strict, there are a few exceptions to this rule:
- Continuous treatment: if you are still receiving treatment from the provider, the deadline will be two years and six months from the date of your last treatment under their care
- Foreign object exception: if a foreign object is left in your body, you have one year from the date on which you discovered or which you should have discovered the object
- Minors: Under New York law, the statute of limitations is tolled (paused) for those under the age of 18, and the clock will begin on the day of their 18th birthday. However, depending on the circumstances of the case, limits may apply
What Steps Should I Take if I Suspect a Surgical Error?
If you believe you are the victim of a surgical error in New York City, taking the necessary steps to best protect yourself is critical. This can help protect your health and your right to pursue compensation.
Seek Follow-Up Medical Evaluation
You should seek care from a provider to assess the harm caused by the error as well as receive corrective care.
Preserve Records
You should obtain copies of and organize the following documents:
- Imaging reports
- Operative reports
- Discharge summaries
- Post-op visit notes
- Prescriptions
Connect with Our Medical Malpractice Attorneys Today
You must not wait too long to retain the services of a competent New York City hospital negligence attorney. This is especially true since the statute of limitations for your medical malpractice lawsuit is likely two years and six months from the date of your surgery. So please call Mark L. Bodner, P.C., at your earliest possible convenience.