When Surgery Goes Wrong, What Next?

Team of Surgeons concentrating on a patient during a surgery at a hospital.
Having surgery, particularly under a general anesthetic, is nerve-wracking at the best of times. Although many routine procedures and technological advancements have led to better outcomes, every procedure comes with some risk. Hopefully, when you wake up in recovery, you’ll hear the doctor announce that it was an uneventful surgery and a complete success. But if something unexpected occurs, if you are in significant pain or the procedure did not go as expected, you may ask yourself if this unfortunate outcome was the result of a medical error. This blog outlines the four main types of surgical errors, explains how to determine if there may have been negligence, and what you can do if you or a loved one was injured by suspected medical malpractice.  

Four main types of surgical errors

Medical malpractice cases involving surgeries tend to fall into four main categories. In the first two categories, it is often apparent that there was negligence. It will not be clear if negligence played a role in the outcome in the other two categories, and a deeper investigation will be required.
  1. Wrongful surgery – If surgery was performed on the wrong patient, if the correct surgery was performed on the wrong body part, or if surgery was unnecessary based on a patient’s profile, some form of negligence is likely involved. Wrongful surgeries, which substantially impact a body (for example, amputating the wrong limb), can profoundly affect a person’s enjoyment of life, ability to work, and psychological well-being. In these medical malpractice cases, the question is usually not if there will be an award or monetary compensation to a patient, but rather how much they or their loved ones will receive.
  2. Objects left inside the body – There have been cases where medical tools, materials or other objects are inadvertently left inside the patient’s body. There are protocols and safety checks to prevent this from occurring to ensure foreign objects are accounted for. Infection, scarring, nerve damage and/or remedial surgeries are all possible outcomes in these cases. Once again, proving negligence and damages is generally straightforward with this type of case.
  3. Substandard post-surgical care – Your medical provider’s responsibility to you, as a patient, doesn’t end when you are stitched up or sent home. Ensuring proper follow-up care is an important piece of recovery. Patients need to be monitored and educated about the signs of infection or other post-surgical issues relevant to the particular surgery they underwent. In these cases, proving negligence is more difficult as complications can arise despite appropriate follow-up care. However, if you experience an unexpectedly poor recovery or sustained injury due to poor communication and/or care, there may be medical malpractice. It is reasonable to investigate and ask questions in this situation.
  4. Injury during surgery – If you sustain an injury during surgery, odds are you were not in a state of awareness to recall what happened, what was said, and how the surgeon and medical team responded. Sometimes the injury is part of an inherent risk of the surgery despite the surgeon exercising appropriate skill and caution. Other times, poor judgment, inexperience, lack of skill, inattention, or out-of-date medical knowledge, among other things, may have caused the injury. Determining if negligence caused a surgical injury can be challenging to answer and will require expert knowledge.

What should I do if I think I suffered a surgical injury caused by negligence?

If you’ve suffered an injury during surgery or post-surgery, contacting a personal injury lawyer can help you determine if negligence may have played a role. When I receive a call from a person concerned about a surgical injury, I review the general facts presented, determine the risks associated with the surgery by reviewing the medical literature, and lastly, if required, consult with medical experts to inquire about technical elements of a procedure, condition or injury. Having a well-established network of medical experts is hugely beneficial when it comes to investigating potential medical errors – especially when an injury complained of is an injury, which is an inherent risk of the surgery. Take, for example, a case I brought to the Supreme Court of Canada. In Armstrong v. Royal Victoria Hospital, 2018 ONSC 2439 (CanLII), my client suffered an injury to her ureter during a colectomy (removal of the colon). Ureter injuries are a recognized risk of the procedure. Experts were asked to review the medical charts to determine the proper steps of the procedure and how this injury may have occurred. Experts for both parties noted certain factors might elevate the risk of a ureter injury during this kind of surgery. For example, a large tumour in the colon, extensive inflammation, abnormal anatomy, Crohn’s disease, ulcer, or colitis – Ms. Armstrong did not present with any of these issues. Experts for both parties agreed that this kind of procedure is “surgery 101” for a general surgeon in the absence of these risk factors. By investigating the facts of the case and calling on medical experts to review the charts, we determined that a patient with otherwise normal anatomy should not have suffered a ureter injury; therefore, a surgical error caused Ms. Armstrong’s debilitating injuries.  

Medical malpractice lawyers

Sometimes an injury caused by a surgical error is a textbook case of medical malpractice. More often, establishing a case of medical negligence is exceedingly difficult. Nevertheless, it is always in your interest to consult with a medical malpractice lawyer specializing in surgical errors to determine if you or a loved one’s injury is a result of medical error. Helping people understand their options following a tragic personal injury is a part of Gluckstein Lawyer’s commitment to full-circle care. To learn more about how our team can help you or your loved one, contact Jan Marin.  


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