When Are Surgical Errors Considered Medical Malpractice?

Accidents happen, even in the operating room among practiced, knowledgeable surgeons. In order for these accidents to be considered medical malpractice, however, negligence must be proven. Failure to follow an appropriate standard of care—leading to injury and significant damages—may qualify as negligence.

If you were harmed due to a surgical mistake or a loved one died as a result of medical malpractice, you could potentially recover damages such as medical bills, income loss, and more. Our medical malpractice lawyers are here to help. Contact us for a free, no-obligation consultation today at (904) 251-1111.

when surgical errors malpractice

When Is a Surgical Error Medical Malpractice?

All medical procedures, even minor ones, involve a certain level of risk, in particular surgeries. Therefore, patients typically sign a consent form before surgery. The fact that a surgical error happened does not necessarily mean that you, as the patient, have legal recourse. 

If a surgical mistake happens during an operation, patients typically do not have a malpractice case if:

  • The surgical error arose despite a surgeon adhering to the medical standard of care
  • The patient did not suffer any damages or injuries due to the surgical error

However, if a physician made an avoidable and unexpected surgical error that went beyond the known risks of surgery, you may have a case. If you suspect that medical malpractice occurred during your surgery or the surgery of a loved one, the experienced personal injury attorneys at Harrell & Harrell can assess your case and protect your legal rights.

Common Surgical Errors

According to Johns Hopkins Medicine, medical malpractice incidents, including surgical mistakes, are now the third-leading cause of death in this country. Any deviation from accepted ethical standards can result in medical malpractice. While there can be a variety of surgery errors that result in medical malpractice, some claims happen more frequently than others. The following are the most common types of medical malpractice claims: 

  • Operations on the wrong patient
  • Nerve damage 
  • Surgery on the wrong site 
  • Equipment left inside the patient
  • Anesthesia error
  • Medication errors
  • Infection due to unsanitary surgical instruments
  • Early discharge
  • Damage to internal organs

What Causes Surgical Errors?

Medical malpractice attorneys for individuals hoping to pursue compensation after a surgical error first have to discover what caused the error, as this will be vital for proving negligence and medical malpractice. Some of the more common reasons for surgical errors can include: 


If a surgeon is incompetent, they lack the skills to properly perform surgery and, as a result, may put the patient at risk. Surgeons can overestimate their ability and skill, leading to negligence and the potential for a medical malpractice lawsuit. 

Inadequate Staffing 

Surgical and other errors are more likely to happen when a hospital lacks adequate staff, such as enough nurses for the operating room or aftercare of a patient. Overworked and tired nurses or doctors are more likely to make mistakes. 

Substance Abuse

According to the National Center for Biotechnology Information (NCBI), around 10 to 12 percent of doctors develop a substance use disorder. Drugs or alcohol can cloud a surgeon’s judgment and severely impair their ability to perform an operation to the adequate standard of care. You could have a good case for a lawsuit if a malpractice attorney can prove that your surgeon was impaired or intoxicated during your procedure.

Lack of Documentation and Communication

A lack of communication among doctors and nurses can result in medical errors and medical negligence. Documentation errors, such as failing to note important medication or a patient’s allergies on their medical chart, can also have terrible consequences. 

What Constitutes Medical Malpractice?

Not all mistakes in the operating room automatically result in a medical malpractice claim. For an error to be considered medical malpractice, certain conditions need to be present. Injured individuals could have a case if a surgical injury was potentially avoidable with due care and diligence. Among the most important is a violation of the standard of care. Standard of care is characterized by medical treatment acceptably administered by a prudent healthcare provider.

Patients have the right to expect treatment delivered according to the standard of care. If it can be determined that patient care was below this standard, it will help to prove malpractice. Another characteristic that should be present in a malpractice case is evidence that the error was caused by negligence. Negligence is crucial to malpractice cases—if it cannot be proven, then the case is unlikely to succeed.

 Proving a medical malpractice case may require: 

  • Establishing the medical standard of care 
  • Proving that a surgeon or other medical professional failed to meet the standard when performing the surgery in question  
  • Showing that the surgeon’s negligence caused an injury and damages to the patient.

Standard of care commonly refers to what a reasonably skilled medical professional would have done in the same or similar circumstances. A medical malpractice attorney typically has to draw on expert medical witnesses to establish that a surgeon or other member of the medical team did not exercise an adequate standard of care. Medical malpractice cases are usually expensive to pursue and only viable if the injury results in significant damages.

A Malpractice Attorney Can Assess Your Case

Surgical mistakes can have devastating consequences for an individual and their family. Removing a healthy organ instead of a diseased one, or performing a procedure meant for another patient can completely change a person’s life and lead to a permanent disability or even death. Patients suffering from medical errors could face:

  • Astronomical medical bills
  • Income loss
  • Job loss
  • Financial hardship
  • Emotional distress
  • Chronic pain
  • Follow-up medical procedures

A patient’s health may never be the same after suffering extreme medical negligence in surgery. If you are affected by medical malpractice, you could potentially seek compensation for all your damages.

However, knowing whether you have a case against a hospital or surgeon can be challenging. Medical malpractice lawsuits can involve complex legal and medical issues. If you or a loved one is affected by a surgical error, our malpractice lawyers can determine whether you have a case and could pursue compensation. Going forward, we have the resources to handle every aspect of your claim so you can concentrate on healing and recovery.

Harrell & Harrell Can Fight for Victims of Medical Malpractice

When a person’s life is on the line, surgical mistakes can have devastating consequences. A worst-case scenario could result in death for someone who has loved ones and might require both a wrongful death lawyer as well a malpractice attorney to help them through this difficult time. Oftentimes when there has been an error during surgery or improper handling of patient information by healthcare professionals it leads not only to injury but also loss due to carelessness which causes emotional distress among all parties involved including patients themselves.

We understand that a surgical error can turn your entire life upside down and cause not only long-term physical injuries but also financial chaos. However, you do not have to struggle with a challenging malpractice lawsuit on your own. Our medical malpractice lawyers are here to help. Harrell & Harrell can handle your case from beginning to end and we will fight tirelessly to hold the responsible party to account for your suffering and expenses. 

How Our Dedicated Malpractice Lawyers Can Help

Patients who were harmed due to a medical professional’s careless or reckless actions or inactions deserve justice. Our attorneys can help you seek justice and compensation in several ways, including but not limited to: 

  • Working on a “no-win-no-fee” basis
  • Thoroughly preparing the documentation required to file a suit 
  • Collecting evidence to prove a surgeon’s negligence
  • Proving your present and future expected damages 
  • Providing medical expert witnesses to strengthen your case 
  • Negotiating with the at-fault party and their insurance company for a fair settlement
  • Representing your case aggressively at trial

Do not wait with contacting us as the time to file medical malpractice lawsuits is generally limited. Call us today for a complimentary case review at (904) 251-1111.