No surgery is without some risk. Complications can happen, and sometimes no one is at fault for unexpected surgical outcomes. However, if you have suffered surgical complications or injuries that were caused by the negligence or recklessness of medical professionals or the medical facility involved in your care, you may be eligible for compensation for your damages.
You may wonder how to distinguish between a possible risk that was unfortunately realized in your case, and whether medical malpractice actually occurred. An experienced personal injury lawyer can help.
What Is Medical Malpractice?
Medical professionals and facilities have the highest duty of care to their patients. Medical malpractice is the failure to provide the standard of care that any ordinary, prudent health care professional with similar education and training, or health care entity with similar resources, would have provided under comparable circumstances. Medical malpractice requires that there was harm to a patient that was caused by a breach in their duty of care.
Medical malpractice is not limited to surgical errors. Other common types of medical malpractice include:
- Delayed or missed diagnosis
- Failure to provide adequate treatment for an illness or injury
- Birth injuries
- Medical product liability
- Lack of informed consent
According to a 2018 article from Modern Healthcare, the most common source of medical malpractice claims is diagnostic errors. In fact, a study revealed that about one-third of all medical negligence claims are related to errors in diagnosis. Additionally, surgical and procedure mistakes account for 24 percent of malpractice claims, while medical management mistakes make up 14 percent of claims.
About 36 percent of the medical malpractice claims made because of missed diagnosis or misdiagnosis resulted in the death of the patient, and many of these complaints arose from outpatient settings. About one-third of the diagnosis mistakes were caused by the doctor failing to take a patient’s complete medical history, while more than half involved errors related to lab testing.
What Causes Surgical Errors?
A surgical error is a preventable mistake that occurs during surgery. A few of the reasons such errors may occur include:
- Improper preparation for the surgery, including inadequate preparation by staff of the instruments needed during the procedure, or failure of the surgeon to get complete informed consent from the patient.
- Lack of skills needed for the procedure. It may be hard to imagine that a doctor would perform a surgery that they are not capable or competent to do, but it does happen.
- Taking shortcuts during surgery to save time or resources.
- Failure of communication. Communication failures may include surgical staff not communicating properly with one another, mistakes such as the doctor marking the wrong site for the surgery, and miscommunication about medication dosage that the patient should have after surgery.
- Neglect. Doctors can be careless in preparing for and performing a surgery, and facilities may neglect to ensure that all equipment needed for the procedure is available, or that it has been properly sterilized.
- Fatigue. Surgeons work long hours and often perform multiple surgeries in a day. If a doctor has not had adequate rest, the risk for errors during surgery is increased.
- Drugs or alcohol. Any professional who is under the influence of drugs or alcohol is a danger to their patients.
A study from Loyola University found that educational programs for physicians should strive to improve their emotional intelligence, including stress management and overall wellness, in order to prevent doctor burnout. As reported by Healthcare Finance News, surgeons who are under stress make up to 66 percent more errors on patients. Furthermore, a Columbia University study revealed that during short intervals of stress triggered by a thought or loud noise in the operating room, surgeons were more prone to mistakes that caused bleeding, tissue damage, or burns.
Common Surgical Errors
According to information provided by Healio, up to 45 percent of medical errors involve surgical patients, and 35-66 percent of the errors that happen to these patients occur in the operating room.
Common errors that can take place during surgery or as part of a patient’s pre- or post-operative care include:
- Performing the incorrect procedure. According to a 2017 article, a woman was supposed to receive surgery at the Vanderbilt University Medical Center for the implantation of a small mesh tube extending from her left kidney through her urinary system to her bladder. Instead, doctors mistakenly implanted the tube in her right kidney and ran it through the wrong side of her body. The error damaged the woman’s urinary system and she now requires a lifetime of dialysis. The woman recently filed a $25.5 million medical malpractice lawsuit.
- Performing unnecessary surgery. A recent study revealed that patients are three times more likely to agree to an unnecessary surgery if the word cancer is used. The authors of the study noted that this has likely contributed to the over-treatment of low risk malignant tumors.
- Operating on the wrong patient. The Annals of Internal Medicine reported that wrong patient surgery, though rare, can occur in situations such as an overburdened physician seeking consent for a procedure from a patient they have never met before and whose history they are unaware of. Patients often can not recall crucial details of the surgery they are supposed to have, and therefore do not catch that they may be consenting to a surgery that is not scheduled for them.
- Damaging other organs, nerves, or tissues during surgery.
- Administering the wrong dosage of anesthesia. If a patient does not receive enough anesthesia, there is a risk that they will wake up during surgery. However, if a patient receives too much anesthesia, the risks include complications such as a heart attack, stroke, and even death.
- Using non-sterile instruments. Failure to properly sterilize instruments before surgery can lead to bacterial infections and person-to-person transmission of conditions such as Hepatitis B.
- Leaving medical equipment and foreign objects inside the patient. A report published in Reader’s Digest indicates 4,500 to 6,000 patients have foreign objects left in them each year. The most common equipment left inside of patients includes gauze and sponges.
- Providing inadequate post-operative care, including failing to recognize and treat the symptoms of surgical complications.
Florida’s Medical Malpractice Laws
Under Florida law, victims of medical malpractice are permitted to seek compensation for their injuries from their healthcare provider’s insurance company, as well as through the filing of a medical malpractice lawsuit. Some highlights of the law, as it pertains to medical negligence:
- Florida patients have two years from the discovery of their injury to file a lawsuit, or in certain cases, four years from when the malpractice occurred. An exception to the statute of limitation exists if the doctor fraudulently concealed their negligence in order to prevent the patient from discovering the source of their injury. There is also an exception for minors if the malpractice occurred before their eighth birthday.
- Before a plaintiff can file a medical malpractice suit with the court, they must serve the healthcare provider with an intent to sue. This notice must contain an affidavit from a medical professional stating that this is a valid medical malpractice claim.
- After being served with the notice of intent to sue, the provider has 90 days to decide whether to settle the claim. If the provider determines not to settle, the plaintiff then has 60 days or the remainder of the statute of limitations to file suit, whichever is longer.
- Florida statutes cap the amount of non-economic damages that medical malpractice victims can receive for pain and suffering to $500,000 for most cases, and $1,000,000 for cases resulting in death or a vegetative state. However, in June 2017 the Florida Supreme Court ruled that these caps are unconstitutional, as they arbitrarily reduce damage awards for plaintiffs who suffer the most drastic injuries.
How Can You Avoid Medical Errors?
Patients entrust their care and their very lives to healthcare professionals. Yet medical negligence is currently the third leading cause of death in the United States, behind only heart disease and cancer.
While there is no guarantee that medical professionals will meet their duty of care, there are steps you can take to help avoid becoming a medical malpractice victim. As reported by Forbes:
- Research your medical condition so that you have a full understanding of the symptoms, risks, and potential complications. If your doctor is offended because you are doing your own research, find another doctor.
- Give your healthcare providers a complete list of questions you have about your diagnosis and how the doctor intends to treat you. Demand that your questions be fully answered.
- Speak up and advocate for your own welfare. If you sense something may be wrong, let your healthcare providers know.
- Have a friend or family member go with you to important visits to the doctor.
- Do not be afraid to seek a second opinion or even change doctors if you feel that you are not receiving proper medical care.
- Be honest about all of the information regarding your condition, even if you think that your own actions may have been responsible for your condition worsening. Doctors can only provide the best care if they have all of the information.
- Unless you are facing a true medical emergency that could result in the loss of your life, limb, or eyesight, avoid the emergency room. Use an urgent care facility instead if you need to be seen before your regular doctor can schedule you an appointment.
- Make a list of your medical history and any prescription, over-the-counter, or illicit drugs that you are taking. Doing this, instead of just relying on digital medical records to provide the details of your history, will ensure your doctors have complete information before treating you. It is especially important for your doctors to know about all of the medications you are taking so that they can avoid toxic drug interactions.
- Ask for information about the medicines you are taking in a language you can understand. Some of the information you should have includes what the medicine is for, how it should be taken and for how long, what are the likely side effects and what you should do if you have those side effects, is the medicine safe to take with other medication you are taking, and what food, drinks, or activities should be avoided while using the medication.
- If you are having surgery, make sure that you and your doctors are all aware of exactly what procedure you are having done.
- If you have a choice of which hospital to have your surgery at, choose one where many patients have undergone the same procedure.
A Costly Issue
Medical malpractice claims have been decreasing in recent years, but they remain an enormously costly issue. A 2013 report from Beckers Hospital Review provides the following statistics:
- Florida is the fifth costliest state in terms of medical malpractice payouts, coming behind New York, Pennsylvania, California, and New Jersey. In 2012, more than $203 million was paid out to the victims of medical negligence.
- Approximately one-third of all medical malpractice cases caused the death of the patient. Another 19 percent caused significant permanent injuries.
- 45 percent of medical malpractice claims stem from inpatient procedures, while 41 percent involve outpatient care. 9 percent of cases involve treatment in both inpatient and outpatient settings.
- In 2012, $3.6 billion was paid out to the victims of medical malpractice.
- Damages are awarded in medical malpractices cases in the United States every 43 minutes, based on the figure of 12,142 malpractice payouts per year.
- 93 percent of medical malpractice payouts are the result of a settlement, while 5 percent are the result of civil litigation judgments.
Have an Experienced Sibley Dolman Attorney on Your Side
Medical malpractice causes physical, financial, and emotional damages to injured patients. If you have been injured because of medical malpractice, you need an experienced advocate on your side.
The legal team of Sibley Dolman Accident Injury Lawyers, LLP have offices in Aventura, Boca Raton, Doral, North Miami Beach, and Fort Lauderdale. We work hard to ensure the best possible outcomes in every case. Contact Sibley Dolman Accident Injury Lawyers, LLP at (833) 552-7274 (833-55-CRASH) or online to schedule a free consultation and learn if we may be able to help you.
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