The “Botched Surgery” Case

We are frequently asked to look at cases involving patients who have had a bad outcome from surgery. The question in these cases is almost always the same: Is the patient’s bad outcome a result of unreasonable conduct on the part of the surgeon, or is it simply an unfortunate complication of the surgery?

The Challenges of Surgery Cases

Surgery cases are among the most difficult medical malpractice cases for several reasons.

First, most surgeries come with many potential risks, meaning that the surgeon can do everything right and the patient can still experience a bad outcome, even death. Even the most routine surgery comes with risks, like bleeding and infection. More complex surgeries carry those same risks, as well as many others. Some surgeries may be so complicated, or performed only on the sickest of patients, such that they come with a high risk of mortality.

Second, there is often little evidence of what happened during surgery, other than the report created by the surgeon.  If a surgeon gets lost during the procedure, exercises poor judgment, makes uninformed or ill-advised cuts, or takes unnecessary risks, how common do you think it is for the surgeon to document these errors in the operative note?  Rather, even in a surgery fraught with problems, the operative note often reads like a medical textbook.

That said, under the right circumstances, it is possible to prove a botched surgery case.

Surgery Is Contra-Indicated

First, it may be possible to prove that it was negligent for the surgeon to perform the operation to begin with. For most types of surgery, there are well-accepted “indications”—that is, accepted reasons for a doctor to recommend a procedure.  If these reasons are not present or there are other factors weighing against surgery, the procedure may be “contra-indicated.”  This means that it is negligent to do the surgery at all.

For example, there are surgeries performed to alleviate pain for patients with chronic nerve root pain along their spine.  These procedures—sometimes called radiofrequency ablation or lesioning—use chemicals or heat to burn away nerve roots that serve as a pain generators.  This may disrupt the electrical signals and reduces a patient’s pain.

However, the standard of care requires that before a patient is subjected to this type of procedure and its associated risks, the doctor must first validate that the procedure is likely to provide some benefit.  This is done through injecting numbing medication (e.g., Lidocaine) into the nerve root.  If the numbing medication provides significant relief, then this proves that the nerve root as a pain generator and supports the more-invasive ablation procedure.  If the injections do not provide significant relief, however, then an ablation is contra-indicated because the nerve root is not the primary source of pain.

Negligent Surgical Technique

Another type of “botched surgery” case results from the surgeon’s failure to employ reasonable surgical technique.  Most commonly, this results from the surgeon rushing or employing short cuts rather than proceeding in a safe and logical fashion by developing a pre-operative plan using imaging to map the procedure; and failing to identify and protect critical anatomy.  As a result, the surgeon may become lost during the procedure and cut into critical organs or tissue.

We have seen many examples of improper surgical technique, including cutting through major blood vessels, resulting in limb amputation; pushing a surgical implement through the sinus cavity into the brain; leaving repaired bones or prosthetic replacements crooked, uneven or improperly fixated; transecting the common bile duct when attempting to remove a patient’s gall bladder; performing surgery at the wrong level of a patient’s spine; burning the patient’s spinal cord with an improperly-placed needle; and many others.

To reduce surgical injuries, many procedures are now performed under fluoroscopic or CT-guidance. This means that the surgeon is uses X-ray or CT technology to see what they are doing inside the patient’s body.  Additionally, a surgeon may be utilizing minimally invasive surgical techniques, like a laparoscope, percutaneous catheterization, or robotics. In some cases, images or video of the procedure may demonstrate that malpractice was committed.

The Surgeon’s Background and Training

A good place to begin with any surgery case is to explore the surgeon’s background and training in the surgery.  It has now become well-recognized in medicine that there are significant advantages where a surgeon or surgery center performs a high volume of surgery.  Particularly for complex procedures, the complication rates at high-volume centers may be considerably lower than at hospitals where such procedures are only occasionally performed.  A surgeon who lacks expertise in a particular specialty surgery should probably not offer that surgery (unless in a case of emergency), and should certainly not offer the surgery without fully disclosing the added risks to the patient from their relative lack of expertise and specialization.

Trust Your Botched Surgery Case to an Experienced Attorney

If a negligent surgeon or care provider caused or exacerbated your harm, contact our firm today. Our attorneys are here to guide you through from start to finish of your botched surgery claim. Call today to schedule a private consultation.