Are surgical complications the same as malpractice?

Are Surgical Complications the Same as Malpractice?

Surgeries, regardless of how carefully they are performed, remain an inherently risky type of medical procedure.

Injuries and complications are always a possibility. However, in some cases, they are a direct result of surgical error, omission, or negligence by a member of the surgical team.

These events are recognized as surgical malpractice and have the potential to lead to medical malpractice lawsuits.

What is surgical malpractice?

Surgical malpractice, when put simply, is a form of medical malpractice that involves surgery. This means that if you intend to file a surgical malpractice claim, it must first be deemed viable by meeting the same criteria as any other medical malpractice case.

In order to receive any form of compensation for surgical errors, your medical malpractice lawyer must prove that the following occurred:

  • Negligence: The surgeon involved in your procedure breached the standards of care and this breach caused an injury.
  • Substantial impact: The injuries you suffered were serious. For practical reasons, most medical malpractice cases involve claims that extend beyond pain and suffering due to the costs associated with bringing a medical malpractice lawsuit.

It is important to understand that just because a patient suffers a complication during surgery, it does not automatically indicate any wrongdoing.

In order to determine whether or not your injuries were the direct result of improper medical care, a board-certified medical expert must first conclude if the surgery was warranted.

Did you require surgery?

If a board-certified medical expert determines that surgery was, in fact, needed in your case, then you’ll have to prove malpractice occurred during the surgery itself. When you are looking to pursue a claim, it’s important to also consider how the surgery was performed—warranted or not.

At Sommers Roth & Elmaleh, our medical experts will review some of the following factors:

  • Was the surgery completed in accordance with good and accepted surgical practice?
  • Were the injuries you suffered identified as recognized risks of this particular surgical procedure?
  • Did this injury occur as a result of a violation of acceptable medical practice?

The answers to these questions are crucial to providing a complete and full evaluation the validity of your claim. Depending on whether or not these statements are true will help determine your potential eligibility to receive compensation for surgical errors.

What sorts of injuries are associated with surgical malpractice?

Brain Injury

In some cases, brain injuries can result from complications that occur during a surgical procedure or even during post-operative care. When these injuries are caused by a failure to provide the applicable standard of care, there’s the possibility that surgical malpractice may have occurred.

The severity of these types of brain injuries can vary greatly depending on the extent of surgical intervention and appropriate application of care.

Spinal Injury

In addition to brain injury, spinal injuries are among some of the most serious—and in some cases, irreversible—physical injuries an individual can suffer.

In the instance of a worst-case scenario, spinal cord injuries can result in debilitating, lifelong symptoms that include quadriplegia and paraplegia.

If this injury occurs as the direct result of negligence by a member of the surgical team, then you may be eligible to receive compensation for surgical errors by filing a surgical malpractice claim.

Other Injuries

Other injuries or errors that could lead to a surgical malpractice claim (potentially resulting in compensation for surgical errors) include procedures conducted on the wrong part of the patient’s body; unnecessary surgery or surgery conducted on the wrong patient; surgical instruments left in the body; organ or nerve damage; and infection.

Which legal elements need to be considered?

The following legal factors should be considered in any surgical malpractice claim:

  1. A doctor-patient relationship existed: This can occur either by agreement or through a treatment that is received.
  2. A duty or standard of care was established: This duty clearly stated the legal obligation of the medical professional to provide care that meets the standard accepted in the medical community.
  3. A breach of the duty of care occurred: The medical provider(s) did not meet their obligations.
  4. The breach of care was the primary cause of injury: Medical records and expert testimony can provide proof of the cause behind this injury.
  5. The injury caused damages: These damages can include, but are not limited to, medical expenses, pain and suffering, lost wages, or other effects of the injury.

What types of medical negligence should be reviewed?

While the validity of your claim depends on several different factors, the following examples of medical negligence could result in compensation for surgical errors:

  • Unnecessary surgery
  • Misdiagnosis, failure to diagnose, or delayed diagnosis
  • Misreading or overlooking laboratory results
  • Surgical error
  • Incorrect medication or dosage
  • Poor follow-up or aftercare
  • Premature discharge
  • Failing to take an appropriate patient history
  • Disregarding patient history
  • Failure to order appropriate tests or to act on results
  • Failure to identify symptoms

The above list outlines only some types of medical negligence that can be considered when making a legal claim.

What types of damages will be assessed?

Compensation for surgical errors can be pursued in the event that the damages incurred are the direct result of surgical malpractice. These damages can include:

  • Loss of income or wages
  • Loss of enjoyment of life and cost of future medical care
  • Pain and suffering
  • Disfigurement
  • Disability
  • Mental anguish and other non-economic damages

While doctors are obligated to do no harm and all medical professionals must act in the best interests of their patients, mistakes do happen. Our medical malpractice lawyers can help you understand your options and make informed decisions.

We can also help determine if you are eligible to receive compensation for surgical errors.

What are the time limitations for filing a surgical malpractice claim?

If you suspect that surgical malpractice caused injury and/or additional damages to yourself or a loved one, you must take action sooner rather than later.

In order to successfully file your claim, it needs to be submitted within the given timeframe outlined by your province’s statute of limitations. If the injury doesn’t immediately manifest, you will have from the date of discovering the injury until the limitations go into effect.

Acting immediately, instead of waiting, ensures there will be enough time to take appropriate action.

How to Make a Surgical Malpractice Claim

As one of the oldest and most established medical malpractice firms in Toronto, Sommers Roth & Elmaleh offer compassionate, knowledgeable guidance on all aspects of medical malpractice and related claims.

If you or a family member has been seriously injured as a result of a surgical error, contact Sommers Roth & Elmaleh at 1-844-777-7372 or reach out to us online.

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The information on this page is provided for general information purposes only. It should not be construed as legal advice. It does not constitute legal or other professional advice or an opinion of any kind. Readers should seek specific legal advice regarding any specific legal issues. We do not in any way guarantee or warrant the accuracy, completeness or quality of the information on this page. The posts on this page are current as of their original date of publication, but they should not be relied upon as timely, accurate or fit for any particular purpose.

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    If you have been affected by medical malpractice anywhere in Canada contact us for a free consultation.
    You pay us nothing unless we win.

    A lawyer from Sommers Roth & Elmaleh will be in touch with you as soon as possible. Please note that no lawyer-client, advisory, or fiduciary relationship is created by your inquiry. All information provided is confidential.

    The above information is not legal advice. Past results of cases and recoveries by our medical malpractice lawyers against hospitals, doctors, midwives, nurses and other healthcare professionals are not necessarily indicative of future results. The amounts recovered and other litigation outcomes will vary according to the facts in individual cases.

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    Hilt this Tamrate
    23 May 2023
    Dear Mr Hilik Y. And Jeremy Syrtash. I would like to express my deepest gratitude to you and Sommers Roth and Elmaleh Professional Corporation staff for all you have done with respect to my wife case. My wife was a victim of Medical Malpractice after giving birth to our daughter. She become legally disabled both physically and mentally. The entire family devastated emotionally as my wife struggle to cope with the new reality. The case of Medical Malpractice is quite often a complex case to prove. However, due to your strong commitment, knowledge and dedication combined with strong professionalism the case was successfully won after a long arduous fight. The victory would not have been possible without your dedication and thorough research in the implementation of the standards of the Sommers Roth and Elmaleh Professional Corporation. Justice prevailed at last which in turn allowed my vulnerable wife to feel more optimistic about her future and that of our family. The positive outcome of this case has changed our lives forever. It would not have been possible without the excellent representation of Sommers Roth and Elmaleh Professional Corporation and its legal counsel. My wife and I will be deeply grateful for the successful outcome of this case for many years to come. Solomon Regassa
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    1 December 2021
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