Call Today (219) 464-3246
Posted On June 25, 2022

What Do I Need to Know About the Laws When Accusing a Doctor of a Surgical Error?

If you are the victim of a surgical error in Indiana, you may be entitled to compensation. Understanding more about the laws that apply when accusing a doctor of a surgical error can help you win money damages for your medical bills, pain and suffering, and lost wages. 

Is a Surgical Error Medical Malpractice?

When accusing a doctor of a surgical error, it is important to remember that not all adverse outcomes are caused by medical malpractice. Medical malpractice occurs when a patient is harmed by a hospital, doctor, or another medical professional who fails to perform his or her medical duties competently. For a surgical error to be considered malpractice, the surgeon performing the procedure must fail to follow the appropriate standard of care, and the failure must be the actual and proximate cause of the patient’s harm.

Any surgical mistake that causes bodily harm or health complications to a patient should be evaluated by an Indiana medical malpractice lawyer. The attorney can review the case and determine how the injury occurred, who contributed to causing the injury, and whether the party or parties breached the duty of care owed to the patient. 

Because many malpractice cases involve patients who were already injured or sick, there are often questions about whether the doctor’s actions during surgery actually caused the patient’s injury. Proof of negligence is necessary to establish a medical malpractice case against the hospital or doctor who performed the surgery. 

For example, if a patient has a sudden heart attack or a terminal condition and dies during or after surgery, it may be difficult to tell if the doctor was negligent. In such cases, a medical malpractice lawyer would need to show proof that the doctor’s negligent actions caused the patient’s death. If proof exists, a medical malpractice claim or wrongful death lawsuit can be filed to recover compensation for the patient’s losses.

How Common Are Surgical Errors? 

Serious accidents, health problems, and age-related injuries and illnesses cause most people to experience at least one type of surgical procedure during their lifetime. The need for surgery may be planned, or it may arise suddenly because of a life-threatening complication. In some cases, you may have little control over when and where your surgical procedure takes place. Your doctor, specialist, or surgeon makes the recommendation and all you can do is rely on your doctor’s advice and hope they make the right decision.

Although most surgical procedures go smoothly, surgery does present risks. In some cases, a medical error may go beyond the expected level of risk. In fact, medical regulators have designated some particularly bad outcomes as mistakes that should never occur in an accredited hospital setting. When any type of surgical error occurs, the patient may suffer injuries and health complications resulting in various problems, including life-threatening consequences.

Common Types of Surgical Errors

Surgical errors can happen even when the surgeon performing the surgery has many years of medical knowledge and experience performing the same surgical procedure. So why do surgical errors occur? 

Miscommunication between doctors and nurses causes some surgical errors. Others may be caused by faulty surgical equipment, surgeon fatigue, drug or alcohol impairment, or carelessness. Whatever the cause, the end result can be serious injuries to the patient during or after a surgical procedure. 

Common types of surgical errors include:

Anesthesia Mistakes

Anesthesiologists play a major role in surgical procedures. They must make sure that they have all relevant information about the patient’s medical condition, medical history, and existing allergies before putting the patient to sleep. Too much anesthesia can impact the patient’s oxygen levels and circulation, causing brain damage. Not enough anesthesia can cause the patient to awaken during the surgical process. Anesthesia errors can result in serious injuries and mental trauma to a surgical patient.

Nerve or Organ Damage

During a surgical procedure, it is not uncommon for a scalpel to slip, causing injury to an otherwise healthy body part. Nerves situated close to the operating area are often encountered during surgery. If the nerve is simply touched, the patient may have temporary sensitivity. If the nerve is severed or damaged, the patient may have a lifetime loss of function or mobility. If the bile duct is cut in a routine gall bladder operation, the patient may suffer permanent liver or kidney damage.

Unnecessary Surgery

In most cases, a surgeon performs a surgical procedure based on a series of x-rays, lab reports, or pathology reports. While x-rays are usually definitive, lab and pathology reports can be misinterpreted. Unfortunately, x-rays, slides, lab reports, and pathology reports are sometimes mislabeled with inaccurate patient information. When this happens, the patient may have surgery to repair a problem that he or she never had. 

Operating on the Wrong Patient or Body Part

In some cases, a surgeon may perform a surgical procedure on the wrong patient or operate on the wrong body part. The surgical prep team can deliver the wrong patient to the surgeon, or reports can be mislabeled, contain misinformation, or be misinterpreted. Even with pre-op checklists, operating on the wrong body part still happens. These errors often occur when the patient has been anesthetized and the surgeon does not look carefully at the patient or the patient’s chart before beginning surgery.

Leaving Foreign Objects Inside a Patient

Sometimes, surgeons forget surgical instruments like clamps, scalpels, sponges, gauze, and pads inside a patient’s body when completing a surgical procedure. These surgical errors often lead to pain, internal bleeding, infections, and in some cases, death. Despite hospital equipment counts before and after a surgical procedure, medical malpractice lawyers regularly see injured patients who are accusing a doctor of a surgical error report complications from protocol failures and incorrect counts.

Most surgical procedures require the patient to sign a medical consent form prior to surgery. This form is meant to inform the patient of his/her medical risks associated with a surgical procedure. Understanding your surgical risk and signing a consent form is a big part of what you need to know about the laws when accusing a doctor of surgical error.

Filing a Medical Malpractice Claim and Accusing a Doctor of a Surgical Error

Indiana laws pertaining to medical malpractice claims for medical errors, omissions, and negligence are generally pursued under the state’s Medical Malpractice Act. Indiana state legislators were among the first in the country to enact laws to reduce the number of patient medical errors and allow patients who were injured by those errors to collect compensation for damages.

What Do I Need to Prove to Win a Medical Malpractice Case?

The Indiana Medical Malpractice Act requires that a Proposed Complaint be filed for each case of alleged medical malpractice. Once the victim files a Proposed Complaint, a panel of medical practitioners that are in the same or similar area of practice review it. The panel will render an opinion on the merits of the case. However, the panel’s opinion is not binding but a prerequisite before a party may try to file a State Court complaint to pursue compensation for the injuries within the Indiana court system.

When accusing a doctor of a surgical error, understanding the facts about medical malpractice can lead to a successful case. If your medical malpractice case goes to court, your lawyer must show proof of the following factors to win your case:

  • The doctor violated his/her professional duty of care to the patient
  • The doctor and the patient had an existing medical relationship at the time of the injury
  • The doctor’s improper medical care caused patient injuries
  • The patient suffered losses because of the improper medical care

What Compensation Can I Receive in a Medical Malpractice Case?

Medical malpractice victims can recover economic and non-economic damages when they win a case accusing a doctor of a surgical error. While punitive damages are available in some cases, they are rarely awarded in Indiana. Victims of medical malpractice can receive compensation for medical bills, lost wages, lost future wages or earning capacity, rehabilitation and therapy expenses, emotional distress, and pain and suffering.

Under Indiana’s Medical Malpractice Act, there is a cap on the total damages a victim of medical malpractice can receive. The two-tiered cap system was increased in 2019 and applies to medical malpractice that occurred after June 30, 2019, states that victims who suffered medical malpractice injuries after that date can hold individual medical providers liable for up to $500,000 in damages.

If the victim’s damages exceed $500,000.00, the victim must then file a separate Petition for Excess Damages against The Indiana Patient Compensation Fund (PCF).  However, the law limits the total amount of money plaintiffs can recover from both the individual provider and the PCF to $1.8 million, meaning a victim can only receive an additional maximum from the PCF of $1,300,000.00. It is important to know that not every case will yeild the total amount of damages possible under the law. 

Calculating Special Damages When Accusing a Doctor of a Surgical Error

Calculating special damages (economic damages) is generally straightforward because these damages are based on tangible damages. They include but are not limited to, the cost of medical bills, the cost of rehabilitation, and the loss of income. When a permanent injury or disability occurs from medical malpractice, the cost of future medical bills and future lost income can also be awarded to the injury victim.

How to Calculate General Damages 

Calculating general damages also referred to as non-economic damages, is more complicated. In a lawsuit accusing a doctor of a surgical error, these damages might include subjective losses, like pain and suffering or loss of enjoyment of life. Since these types of losses are not attached to a monetary value, your medical malpractice lawyer will usually base their worth on the special damages you are entitled to receive.

Share
Contact Our Indiana Medical Malpractice Attorneys at Langer & Langer Today!
(219) 464-3246 (219) 464-3246