When a negligent surgeon makes a serious mistake while conducting a surgical procedure, it can be genuinely frightening. There’s always the possibility that a surgeon could amputate the wrong limb, remove the wrong kidney, or even operate on the wrong patient. This kind of mistake isn’t common, but it could still happen to anyone. The more frequent surgical mistakes can be just as serious. In fact, there really are no “minor” surgeries or surgical mistakes.
Still, not every surgical mistake necessarily constitutes medical malpractice. Some of the legal definitions and principles will be discussed below, but every malpractice incident is unique, so anyone who is injured during a surgical procedure should seek sound legal advice from an experienced medical malpractice attorney. If you believe that you have been injured during surgery in or near the Chicago area, arrange a consultation with experienced Chicago medical malpractice attorney Joseph M. Dooley. For more than 25 years, Joseph M. Dooley has defended the rights of those victimized by negligence in the Chicago area.
WHAT IS THE DEFINITION OF MEDICAL MALPRACTICE?
How is medical malpractice defined? According to the National Center for Biotechnology Information, “Medical malpractice is defined as any act or omission by a physician during treatment of a patient that deviates from accepted norms of practice in the medical community and causes an injury to the patient.” According to Medical News Today, “Medical malpractice occurs when a health care professional or provider neglects to provide appropriate treatment, omits to take an appropriate action, or gives substandard treatment that causes harm, injury, or death to a patient.”
In other words, if a physician offers “substandard treatment” to a patient, treatment that falls below “accepted norms of practice,” and a patient is harmed, injured, or killed as a result of that substandard treatment, it’s probably medical malpractice. If a surgical error did not fall below the medical community’s accepted standard of care, or if the patient was not harmed by the mistake, then no medical malpractice took place.
The medical community’s accepted “standard of care” can be defined as the type and level of care that a typical, cautious healthcare professional with the same specialization and training would provide to a patient in comparable circumstances. In a medical malpractice claim, the alleged victim of a surgical mistake first must establish that a surgical mistake fell below the accepted standard of medical care. This is proven by having a medical expert familiar with the area of practice render an opinion based upon reasonable medical and surgical certainty that the medical care at issue fell below the applicable standard of care.
If that charge can be established, then the victim must prove that he or she was injured by the mistake. In a wrongful death claim arising from medical malpractice, the victim’s surviving family members must prove that the surgical error was a cause of the death. In either scenario, the victims or family members taking the legal action will need the counsel of an experienced medical malpractice attorney.
HOW IS THE PHRASE “SURGICAL MISTAKE” DEFINED?
“A preventable error made by a surgeon performing a surgical procedure” is the simple definition of a surgical mistake. Of course, at least some element of risk is part of every surgery. When a prospective surgery patient signs an “informed consent” document, the patient is confirming that he or she has been informed of and understands that the upcoming surgery involves certain known risks. Surgical mistakes, however, are usually unexpected errors that may not be linked to the “known risks” of the surgery.
Rather, the more typical reasons for surgical mistakes include:
• Insufficient preparation: A doctor must be fully prepared to perform a surgical procedure. He or she must fully understand the patient’s health and medical condition and be ready for any complications that are likely to arise. Nurses, assistants, and surgical equipment and tools must also be properly readied.
• Failure to communicate: Doctors, nurses, and assistants must communicate clearly and precisely to one another both during a surgical procedure and in the preparation leading up to the surgery. Surgeons must see to it that all necessary tools and equipment will be available and that nurses and assistants fully understand their roles and responsibilities. A failure to communicate clearly is often the reason for a serious surgical mistake.
• Poor judgment: As a surgery proceeds, a surgeon may wrongly decide that one or more steps in the standard surgical process won’t be needed, but a doctor who takes a shortcut may be making a poor judgment that harms or injures a patient. Or poor judgment may occur when the surgeon is required to handle a mishap intraoperatively or a complication which occurs post-operatively, either of which can lead to serious injury or death.
• The fatigue factor: Fatigue is too often the real cause of a surgical mistake. Healthcare professionals, in particular, work long and sometimes irregular hours, and everyone knows that fatigued people are more apt to make errors than people who are rested and “fresh.”
• Substance abuse: It’s sad, true, and thankfully not very common, but there have been cases of surgeons with substance abuse issues actually performing operations while under the influence of drugs and/or alcohol.
• Inexperience or incompetence: Everyone has to start somewhere, but if your surgeon has little or no experience performing a particular kind of surgery, the chances of a mistake are greater. And some doctors simply lack the talent and experience it takes to properly perform certain surgical procedures or to deal with the complications which may occur intraoperatively or post-operatively.
HOW LONG DO YOU HAVE TO FILE A MEDICAL MALPRACTICE CLAIM?
In Illinois, if you are injured by a surgical mistake because your surgeon was negligent, the statute of limitations for filing a medical malpractice claim is two years from the date of the malpractice incident – in most cases. When an injury caused by medical malpractice is not immediately apparent, a victim of medical malpractice has two years after the injury is discovered (or reasonably should have been discovered) to file a claim – in most cases.
The Illinois statute of limitations provides a “final” deadline of four years from the date when the injury occurred. However, the circumstances which allow a case to be filed under this extended deadline known as the statute of repose are oftentimes difficult to prove.
But even those deadlines have exceptions within some very precise limits. The statute of limitations may not apply to cases where a foreign object was left by a surgeon inside a patient’s body or cases where healthcare professionals knowingly and fraudulently concealed an incident of medical malpractice.
If the malpractice victim was under age 18 when the injury occurred, the statute of limitations is eight years from the date of the injury. But in no event may the cause of action be brought after the person’s 22nd birthday.
If you’ve been injured during surgery, don’t wait two or four years to speak with an attorney. Medical malpractice cases arising from surgical mistakes can be exceedingly complicated, so if you’ve been injured in surgery, you need to put a good attorney on the case at once.
If you or someone you love has been injured during a surgical procedure in or near the greater Chicago area, discuss your legal rights and options right away with experienced Chicago medical malpractice attorney Joseph M. Dooley. Email him at [email protected] or call 312-236-7282.