Can you sue a doctor for a failed surgery? Modern hospitals and surgical centers have techniques and technologies that can reduce the risks a patient takes when going under the knife.
Every surgery, however, still comes with a certain degree of risk. When surgery results in disfigurement and unnecessary pain, victims may be burdened with additional medical costs to fix what went wrong.
If you have been the victim of a failed surgery, what to do next is likely on your mind. Read more to learn about the 4 steps you need to sue a doctor for a failed surgery lawsuit.
As discussed in more detail below, we recommend that you contact a surgery lawyer as soon as possible.
Lawsuit After Surgery Gone Wrong
When a patient undergoes surgery, and if they believe that the doctor has made a significant and preventable medical error during the procedure, they may have grounds to pursue a medical malpractice lawsuit. Medical malpractice claims can allow the injured patient and their family members to seek compensation for the damages caused by surgical errors, including medical expenses, pain and suffering, and other losses.
Surgeons can be found to be negligent when they fail to adhere to the accepted standards of care.
Examples of surgical malpractice include:
- Performing the wrong operation;
- Wrong site surgery (operating on the wrong part of the body);
- Nicking a nerve or artery;
- Leaving a surgical instrument inside the body;
- Damaging internal organs;
- Failing to observe and react to excessive blood loss, unusual labs, communications from nursing staff; and
- Causing an infection.
These are all common errors in medical malpractice lawsuits. Lack of communication, poor sanitation, broken rules, or recklessness during an operation could all cause preventable mistakes and failed surgeries. If you believe you have been the victim of a negligent surgery, it is important to contact an experienced surgery lawyer today.
Anatomy of a Failed Surgery Lawsuit
A surgeon can be found negligent when he or she breaches the accepted standards of care before, during or after surgery.
If the surgeon’s breach or breaches of the standards of care results in harm, you may be able to proceed with a failed surgery lawsuit.
You must, however, take 4 steps to succeed in a failed surgery lawsuit.
Step One: Obtain Medical Expert Opinion(s)
In Maryland, within 90 days of filing a medical malpractice claim, including cases for negligent or failed surgery, you must file a certificate of qualified expert.
The certificate must attest that the health care provider departed from accepted standards of care and that the departure from the standards of care proximately caused your injury. The certificate must be signed by an expert who is board certified in the same or a related specialty as the negligent health care provider.
The expert signing the certificate must also have clinical experience in the field of health care in which the defendant provided treatment to you within five (5) years of the negligence giving rise to the cause of your injury.
Step Two: File Your Claim
You must be mindful to file claims for medical malpractice within the applicable statute of limitations.
How long do you have to sue a doctor after a surgery gone wrong? In Maryland, generally speaking, actions for damages arising out of injuries from the rendering of or failure to render professional services by a health care provider must be filed within the earlier of:
- five years of the time the injury was committed or
- three years of the date you discovered your injury,
whichever comes first.
The statute of limitations may be different if your claim involves a minor child. It is also important to note that, in Maryland, if you are claiming damages in excess of $30,000.00, you must first file your claim with the Maryland Health Care Alternative Dispute Resolution Office.
As you can see, filing a medical malpractice claim, including claims for surgical negligence, can be complicated and involves numerous procedural hurdles. Therefore, prior to filing a case for medical malpractice, we believe that it is important to retain legal representation.
Step Three: Discovery Phase
Once your medical malpractice claim is successfully filed, the discovery phase begins. Discovery is when both sides gather and exchange evidence, including medical records and other documents. Typically, the discovery phase of your case also involves depositions of the parties and their respective expert witnesses.
Step Four: Settlement or Trial
Before, during or after the discovery phase of your medical malpractice case, your case may settle out of court. If your case does not settle out of court, your case will likely go to trial.
If your case proceeds to trial, a judge or jury will determine if medical malpractice occurred and if the defendant is liable for your injuries. Again, medical malpractice cases are complex and time-consuming. Consulting with an experienced medical malpractice attorney before proceeding with a lawsuit will help you maximize your chances of success.
Do I Need a Surgery Lawyer?
If you believe that you have a medical malpractice claim arising from a botched surgery, it is highly recommended that you seek the assistance of an experienced medical malpractice attorney.
The guidance of an attorney can be invaluable in navigating the legal system and securing a favorable outcome. Indeed, an experienced and knowledgeable medical malpractice attorney can help you evaluate the strength of your case, gather the appropriate evidence and, if necessary, present your case in court.
Medical malpractice attorneys can also negotiate with the defendant’s insurance company and/or legal team to reach a settlement that fairly compensates you for your losses.
Medical malpractice cases are subject to strict deadlines and procedural requirements. Failing to comply with these requirements can result in the dismissal of your case.
Therefore, it is particularly important that you seek the advice of a medical malpractice attorney. An experienced medical malpractice attorney can help ensure that all necessary steps are taken in a timely and effective manner, helping you avoid costly mistakes, delays and/or dismissal of your case.
Frequently Asked Questions about Surgery Gone Wrong
What Qualifies as Medical Malpractice in a Failed Surgery?
Medical malpractice occurs when a doctor or surgeon fails to meet the accepted standard of care, resulting in harm to the patient.
In the case of a surgery gone wrong, this could involve errors such as performing the wrong procedure, operating on the wrong body part, leaving surgical instruments inside the body, or damaging internal organs. If the surgeon’s actions were negligent and caused you harm, you may have grounds to file a medical malpractice lawsuit.
How Long Do I Have to File a Medical Malpractice Lawsuit After a Failed Surgery?
The timeframe for filing a medical malpractice lawsuit, known as the statute of limitations, varies by state.
In Maryland, for example, you must file within five years of the surgery that caused the injury or within three years of discovering the injury, whichever comes first. It’s crucial to act quickly, as missing the deadline can prevent you from pursuing compensation.
What Kind of Compensation Can I Receive in a Failed Surgery Lawsuit?
If you succeed in a failed surgery lawsuit, you may be entitled to compensation for a variety of damages, including medical expenses for corrective treatments, lost wages due to time off work, pain and suffering, and emotional distress.
In some cases, you may also receive compensation for long-term disability or loss of quality of life caused by the surgical error.
What Evidence is Required to Prove Medical Malpractice in a Failed Surgery Case?
To prove medical malpractice in a botched surgery case, you must establish that the surgeon failed to adhere to the accepted standard of care, resulting in harm. This often requires the following types of evidence:
- Medical Records: Documentation of the surgical procedure, patient history, and post-operative care.
- Expert Testimony: Opinions from qualified medical experts who can attest to the standard of care and how it was breached.
- Witness Statements: Testimonies from other healthcare professionals or individuals present during the surgery that support your claim.
- Photographic Evidence: Any images that document injuries or complications resulting from the surgery.
Can I File a Lawsuit if I Signed a Consent Form Before Surgery?
Yes, you can still file a lawsuit even if you signed a consent form before surgery. Signing a consent form does not waive your right to seek compensation for medical malpractice.
Consent forms typically outline the risks associated with the procedure but do not protect healthcare providers from negligence. If the surgeon’s actions go beyond what was disclosed in the consent form or if they fail to meet the accepted standard of care, you may have grounds for a lawsuit.
Do You Need a Lawyer for a Failed Surgery?
Do you need a lawyer for surgery gone wrong? In order to determine whether you have a viable claim for negligent surgery, it is important to consult an experienced attorney who can evaluate the specifics of your case.
The lawyers at Baird Mandalas Brockstedt & Federico, are sophisticated, experienced, well-resourced attorneys dedicated to achieving justice for you.
For decades, our attorneys have handled hundreds of medical malpractice cases, including numerous cases for failed surgeries. Our attorneys have recovered over one billion dollars on behalf of our clients. Contact us today!
Where to find our Baltimore office
Phil Federico is a partner at Baird Mandalas Brockstedt & Federico where he helps lead the Mass Tort / Class Action and Environmental Law practices, transitioning into these areas after beginning his career as a medical malpractice litigator.
Phil has led and been involved in historic and groundbreaking litigation with verdicts and settlements exceeding one billion dollars.
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