Surgical malpractice, that is, when unnecessary injury or wrongful death occurs as a result of a surgical procedure, presents a number of challenges to Ohio malpractice attorneys.Some surgical malpractice cases are relatively easy, such as when surgical equipment like a sponge, towel, or retractor, is left in the surgical field after the incision site is closed. Malpractice lawyers call these “retained foreign object” cases. Another example is wrong-site surgery or surgery on the wrong patient. But these are relatively rare due to the systems in place to avoid these problems. Following is a discussion of the considerations and challenges faced by patients and their malpractice lawyer when surgical complications follow surgery. A Mansfield, OH surgical malpractice lawyer can help investigate whether a complication may have resulted from a deviation in accepted medical standards and guide you through the process of pursuing accountability when preventable harm occurs.
When assessing a surgery gone awry, we ask several questions: (1) Was the surgery necessary or could it have been avoided with earlier non-surgical treatment? (2) Were other treatment options available? (3) Was the operating surgeon experienced and competent to perform the surgery? (4) Was the surgical technique and equipment appropriate for the procedure? (5) Were appropriate precautions taken before, during and after the surgery? (6) Was the complication a known risk of the surgery or could it have been avoided?
In general, known and accepted risks of a surgical procedure are not compensable injuries in Ohio. Common unavoidable risks of operations are post-operative infection, bleeding complications and damage to surrounding structures. These complications are covered by the consent form in which the patient acknowledges that all risks, benefits and options were discussed by the surgeon. Even if the surgeon did not take care to explain these important matters, the consent form creates a presumption that they were. This presumption is difficult-to-impossible to overcome, since it pits the surgeon’s word against that of the patient.
When a known complication arises, we investigate whether proper precautions were taken to minimize the risk of injury. For example, we have handled several cases where surgeons failed to give antibiotics or medications to prevent blood clots (anticoagulants) before a surgery to prevent known risks of the surgery. There are published guidelines that address when preoperative antibiotics or anticoagulation are indicated for many surgeries based on extensive medical studies.
We also investigate whether proper surgical techniques were used to minimize the risk of injury. Unfortunately, the key information about how the surgery was performed, the operative note, is prepared by the surgeon. Surgeons are trained to dictate standardized procedural notes that rarely support a finding of medical negligence. However, when complications arise after a surgery, the question becomes whether the complication was timely diagnosed and treated. For example, bleeding after a surgery must be addressed promptly or the patient can exsanguinate and go into hemorrhagic shock from excessive blood loss. Likewise, delayed diagnosis and delayed treatment of infection can result in disability or wrongful death.
In Ohio, medical malpractice occurs when care falls below accepted standards of care and that negligence results in otherwise avoidable harm, like permanent disability or wrongful death. The lawyers and staff at Mishkind Kulwicki Law Co., L.P.A. have extensive experience with surgical malpractice and we have access to well-qualified surgeons who review medical records and films. We are here to assist in investigating when a surgical procedure or operation ends in catastrophe.
