Imagine going in for a routine surgery, like having your tonsils removed. The nurses and medical staff prep you, and soon you are asleep from anesthesia. The next thing you know, you wake up, and realize something horrible has happened. Your leg has been amputated. Unfortunately, this is not the plot to a horror movie, but another wrong site surgical error. Wrong site surgical errors are not as uncommon as you might think. Every year, there are around 64 cases of wrong site surgical errors in Pennsylvania, with many resulting in permanent disability, catastrophic injury, or wrongful death.
Are Surgical Errors Medical Malpractice?
Many people seem to believe that anything that goes wrong during a surgery is a surgical error and thus medical malpractice. The truth is that the analysis and determination as to whether a decision or act during surgery constitutes medical malpractice is a fact-specific and governed by the medical standard of care in Pennsylvania. In Pennsylvania, a bad medical result alone does not always constitute medical malpractice however it is one of the elements. Rather, medical malpractice in Pennsylvania requires the doctor, surgeon, anesthesiologist, or other medical professional to have deviated from the accepted medical standard of care. The standard of care in Pennsylvania can be roughly summarized as a deviation from the decision or type of care a similarly situated medical professional would provide or make.
Medical malpractices in Pennsylvania must be supported by the testimony of expert witnesses. The standards for expert witnesses and other aspects of a medical malpractice suit are set forth in Medical Care Availability and Reduction of Error (MCARE) Act. MCARE also governs statute of limitations periods, statute of repose, aspects of patient safety, professional liability, and other aspects of a medical malpractice surgical error lawsuit.
Wrong Site Surgical Errors
Wrong site surgery includes operating on the wrong side or site of the body, performing the incorrect surgical procedure, or operating on the wrong patient. It is considered one of the most egregious medical errors that can occur, and is almost always preventable. Something as simple as a checklist could prevent this horrific type of accident. So why do wrong site surgical errors continue to happen?
Communication failures, time pressure, noncompliance with operating procedures, or lack of formal operating procedures can result in wrong site surgeries. Other factors that increase the risk of wrong site surgery include multiple surgeons, multiple procedures, room changes, staff changes, and obesity. Because wrong site surgeries continue to happen every year, the Joint Commission, the organization that provides hospitals with accreditation developed the Universal Protocol as a way of reducing and preventing wrong site surgeries. The three steps in the protocol urges doctors, surgeons, anesthetists, and nurses to work together to verify the patient information and identity, mark the site for the surgery, and to take a time out before operating to make sure everyone in the operating room knows and is in agreement as to what they will be doing.
What Other Types of Surgical Errors Exist?
There are unfortunately a vast array of other surgical errors that can result in life-altering or fatal injuries. These injuries include:
- Internal organ injury or perforation– The use of surgical tool and manipulations of organs may result in damage or perforations of internal organs when negligence occurs. Organ damage can cause serious and life-altering consequences or internal bleeding.
- Use of contaminated medical instruments– Use of non-sterilized medical implements can lead to infection and other surgical complications. This can lead to serious injury, delayed recovery, or death.
- Reuse of single-use medical instruments or implements– Many surgical implements and instruments are designed to be used in one single instance. Reuse of single-use instruments can also increase the risk of infection or error due to a tool that malfunctions or breaks.
- Anesthesia errors– Mistakes with anesthesia can create serious surgical complication or result in the wrongful death of the patient. Failures to monitor oxygen levels can result in life-altering brain injuries.
- Forgotten object left in patient’s body– A forgotten object such as a surgical tool, sponge, or gauze in the patient’s body can cause months or years of pain and discomfort. In can increase the risk of internal injuries or infection.
- Use of a defective medical implant – the implementation of a defective surgical implement can require its removal or result in serious injury or death. Defective medical implements include defective pelvic mesh, defective pacemakers, and defective hip and knee implements.
While additional potential for injury exists, the above covers many of the more common types of surgical errors where medical malpractice may have occurred.
Factors Contributing to Surgical Errors in Pennsylvania
Surgery is complicated and demanding. Many surgeons are overworked and under tremendous pressure. Errors or mistakes occur because of these and other factors.
In some cases, a surgeon is inexperienced or lacks the technical competence necessary to perform the specific surgery. Often, a surgeon’s lack of experience will come into play when a routine procedure is thwart with unexpected complications.
Managing an operating theater is also challenging. A successful and uneventful surgery requires constant and precise communication between all participants. Inexperience often leads to miscommunication, which in turn results in preventable errors. Unfortunately, there are times when seasoned surgeons neglect to effectively communicate with members of the surgical team. Communication mistakes are not a one-way street. Nurses and other medical personnel sometimes relay inaccurate information or omit vital data.
When medical personnel are distracted while doing their work, errors occur. Surgeons, nurses, anesthesiologists, and other staff could all contribute to an inexcusable mistake if they are not paying close attention to their duties.
As stated above, many surgeons are overworked. The same goes for other members of the surgical team. This is especially true in emergency room situations. When a medical professional is fatigued, they are more likely to make a physical mistake or a critically poor decision.
Proving Medical Malpractice in a Pennsylvania Surgical Error Lawsuit
A poor outcome does not mean a surgeon or any member of the surgical team committed an unjustifiable error or is guilty of medical malpractice. For a plaintiff to have a case of medical malpractice for a surgical error in Pennsylvania, they must establish that there was a violation of the standard of medical care, the violation caused the harm, and actually damages were sustained. Additionally, Pennsylvania requires that a plaintiff in a medical malpractice case obtain a Certificate of Merit from another physician or medical expert.
Violating the Standard of Care
If you are a surgeon or medical professional in Pennsylvania, you are required to have the same level of knowledge and exercise the same reasonable care ordinarily used in your field. This obligation includes keeping up with contemporary practices and developments. Legally, this is referred to as the “standard of care.”
In a medical malpractice lawsuit, the plaintiff bears the burden of presenting evidence that their surgeon violated the acceptable standard of medical care. To put it into simpler words, our Pennsylvania surgical error attorney will have to prove that the conduct or decisions your surgeon made would not have been made by a professional peer. This does not mean that your surgeon’s course of action had to produce a positive result. Proving that surgical decision or error violated the standard of care requires expert testimony from one or more medical professionals.
To prove medical malpractice in a personal injury lawsuit stemming from a surgical error, the plaintiff must demonstrate that the violation caused harm. Establishing a connection between the surgeon’s conduct and the harm is often challenging. Medicine, as they say, is not an exact science. There are times when, no matter what the surgeon did or did not do, the negative result was likely to occur. Our office will have to produce evidence that links the injury you suffered with the decisions or actions your surgeon made. For example, our Pennsylvania surgical error attorney would have to prove that an infection was caused by a sponge left inside your chest cavity after a procedure.
The final piece of the medical malpractice puzzle is damages. To have a viable personal injury case due to a surgical error, the plaintiff must have suffered actual damages. These damages can range from an extended hospital stay, additional medical expenses, pain and suffering, and lost wages.
Pennsylvania Certificate of Merit
Pennsylvania’s rules of procedure have an additional requirement for plaintiffs who wish to file a medical malpractice lawsuit against their surgeon or other medical professionals. When a medical malpractice lawsuit is filed, our Pennsylvania surgical error lawyer must also file a Certificate of Merit. The Certificate of Merit is a statement made and signed by an expert medical witness that verifies that, given the known circumstances and facts of the case, there is reasonable belief to conclude that the conduct, decisions, and exercised standard of care fell outside the accepted professional standards. The goal of this requirement is to ensure that a medical malpractice claim has merit and is not being filed frivolously.
Damages Available in a Lawsuit for Surgical Errors in Pennsylvania
As stated above, the final element necessary to prove in a medical malpractice case is damages. When a plaintiff files a personal injury lawsuit, they are seeking monetary compensation. Damages is the legal term to describe the compensation being sought.
In Pennsylvania, victims of surgical errors are permitted to collect various types of damages. The most common are known as compensatory, or economic, damages. As the name implies, these damages cover the actual financial losses a plaintiff incurred because of the surgical mistake. Typically, a plaintiff is entitled to recover their medical costs, lost wages, and future lost income.
The second type of damages are intangible, or non-economic, damages. A plaintiff is permitted to seek recovery for almost unquantifiable harm such as anxiety, pain and suffering, emotional distress, and the loss of enjoyment of life. In Pennsylvania, there is no statutory limit on the amount of economic or non-economic damages a jury could award.
A third type of damages is also available in Pennsylvania. Punitive damages are awarded to punish medical professionals and healthcare facilities that have harmed their patients by acting in an intentional or malicious reckless manner. If the reckless conduct is not intentional, Pennsylvania law caps punitive damages at 200% of the economic damages awarded. Furthermore, 25% of the punitive damages awarded will go into the MCARE fund. This fund was created to provide compensation for victims of medical malpractice where the plaintiff’s claims exceed the medical professional’s insurance coverage.
How Long do I have to File a Surgical Error Lawsuit?
The general statute of limitations – the amount of time you have to file a lawsuit – in Pennsylvania is not unlimited. Rather, to encourage people to file a lawsuit when evidence is fresh and before the events fade from memory, a two-year statute of limitations applies. This statute of limitations can, in some cases, be mitigated by the discovery rule. However, the discovery rule is an exception to the time limits set forth for medical malpractice action and does not apply in wrongful death cases. Therefore, you should speak to a lawyer as soon as possible if you suspect medical malpractice has occurred.
If You or Someone You Know Has Suffered an Injury or Death Resulting from Surgical Error, Our Lawyers Can Help
The experienced medical malpractice lawyers at The Reiff Law Firm have seen surgical errors that can lead to healthy organs being removed, unhealthy or cancerous organs not being removed, wrong limbs amputated, and the need for additional surgery to correct wrong site surgical errors. We truly understand how horrific a surgical error can be, and how it can affect the rest of your life and the lives of your family and loved ones. The surgical error and experienced Pennsylvania medical malpractice lawyers of The Reiff Law Firm stand proud as a well-known medical negligence law firm where many judges, doctors, high-ranking officials, and catastrophically injured victims have turned to when faced with devastating injuries, medical malpractice, and wrongful deaths.
If you or a loved one has suffered a catastrophic injury or wrongful death due to a wrong site surgical error, contact one of the experienced medical malpractice attorneys for a confidential, no-obligation consultation so we can start fighting for you. Contact the attorneys of The Reiff Law Firm today by calling (215) 709-6940 or contact us online.