When you check into the hospital or surgical center for a surgical procedure, the last thing you expect is that your surgeon or someone else on your health care team will make a mistake and injure you. Unfortunately, however, these types of medical errors occur more frequently than you might suppose. Furthermore, they can occur not only during the surgery, but before or after it as well.
Types of Pre-Surgery Errors
Prior to your surgery, many things need to occur in order to properly prepare you and the operating room for your procedure. Failure on the part of a medical professional to do any of them, such as the following, could easily lead to your being injured:
- Fully advise you of the risks involved in your type of surgery
- Obtain your written informed consent to the procedure
- Properly analyze your diagnostic tests
- Properly identify you as the patient who is to undergo this procedure
- Mark the area of your body where the surgery will take place
- Properly sterilize the surgical instruments
- Communicate fully with the entire surgical team
- Administer the proper anesthesia in the proper dosage
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Types of Surgical Errors Per Se
Once in the operating room, you have no knowledge of or control over what happens because you are anesthetized. Your very life is in the hands of your surgeon and the other members of the surgical team. If someone makes a mistake, you will not know about it until it’s too late. Common errors include:
- Operating on the wrong patient
- Operating on the wrong body part
- Performing the wrong procedure
- Leaving a sponge or other foreign object in the patient’s body
- Failing to discover and repair a nicked artery or vein
- Damaging nerves or internal organs adjacent to the surgery site
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Types of Post-Surgery Errors
Finally, what happens in the recovery room or the surgical intensive care unit after your surgery has a direct bearing on your health and well-being. Errors that occur here are usually attributable to the nursing staff and include:
- Failure to properly monitor the progress of your recovery
- Failure to use sterile procedures while caring for you
- Failure to see and understand indications of improper wound drainage or the beginnings of an infection
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Surgical Error Statistics
The age of your surgeon is a contributing factor to his or her likelihood of committing an error while operating on you. Research shows the following distribution of surgical errors by age of the surgeons committing them:
- Age 40-49: 36% of errors
- Age 50-59: 30%
- Age 39 and below: less than 25%
- Age 60 and above: 15%
Other contributing factors include:
- Improper preoperative planning
- Improper work process, i.e., taking shortcuts
- Fatigue
- Use of drugs or alcohol prior to surgery
- Lack of proper care, i.e., neglect
- Incompetence, i.e, lack of sufficient experience in performing this type of surgery
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Potential Lawsuit
Given that a surgical error can negatively impact the rest of your life, it’s good to know that you have the right to sue the medical professional who committed the error and therefore caused your injury or injuries. If he or she is an employee of the hospital or other facility in which the surgery was performed, you likely can sue it as well. Surgical errors form a subset of medical malpractice lawsuits.
Utah Statute of Limitations
Section 788-3-404 of the Utah Judicial Code, entitled the Utah Health Care Malpractice Act, sets forth Utah’s statute of limitation for filing medical malpractice lawsuits. It states that you must file your suit “within two years after [you] discover, or through the use of reasonable diligence should have discovered, the injury, whichever first occurs, but not to exceed four years after the date of the alleged act, omission, neglect, or occurrence.”
However, you have only one year to file a suit in which you allege either that your surgeon left a foreign object in your body or that he, she, or the employing facility “affirmatively acted to fraudulently conceal the alleged misconduct.”
If you fail to meet one of these all-important dates, the judge in all likelihood will dismiss your case.
Pre-Suit Mandates
In addition to complying with Utah’s statute of limitation, you must adhere to two pre-suit mandates.
The first is that you provide each health care provider that you plan to sue with 90 days’ notice of your intent. This notice must include:
- The date, location and time or your alleged injury or injuries
- The extent of your injuries
- Identification of every health care professional involved with your care
- Your specific misconduct allegations regarding each such professional
The second is that you must file a request within 60 days of sending out your notices with Utah’s Division of Occupational and Professional Licensing asking that a pre-litigation panel review your claim. If the panel denies it, Section 788-3-423 of the Utah Judicial Code grants you the right to file an affidavit of merit.
Types of Damages
When you file your lawsuit, you will ask for both economic and noneconomic damages. Your economic damages include your current and future medical costs, as well as your current and future loss of income. Utah has no cap on the amount of economic damages you can obtain. Your economic damages with regard to medical costs include such things as:
- Hospital expenses
- Prescription drug expenses
- Rehabilitation expenses
- Physical or occupational therapy expenses
- Cost of medical equipment
Utah does, however, cap the amount of noneconomic damages you can obtain. Section 788-3-410 of the Utah Judicial Code limits the amount you can receive by settlement or jury award to $400,000. Your noneconomic damages include such things as:
- Physical, mental and emotional pain, suffering and anguish
- Embarrassment caused by your scarring
- Loss of identity caused by your disability
- Loss of your overall enjoyment of life
Standard of Care
Each of the members of your surgical team practices under a standard of care, defined as “the level at which the average, prudent provider in a given community would practice.” This standard of care is different for each member of the team, depending on his or her role, such as:
- Surgeon
- Anesthetist
- Nurse
- Lab technician
These varying standards of care become important as you and your lawyer search for expert witnesses to testify on your behalf during trial. Keep in mind that for each type of defendant you sue, you will likely need an expert witness with the same kind of education and background and who practices the same type of medicine in a similar setting.
Finding Your Surgical Error Lawyer
Needless to say, a medical malpractice lawsuit becomes quite complicated quite quickly. At Siegfried and Jensen, we take your surgical injuries as seriously as you do, and are fully prepared to thoroughly investigate your case, make sure you adhere to Utah’s statute of limitations and other mandates, and then aggressively represent you in negotiations with the relevant insurance companies. If your case fails to settle satisfactorily, we likewise are fully prepared to try your case to a jury. In fact, our team of highly skilled and deeply experienced lawyers practices only personal injury law and has been helping injured Utah residents for over 30 years.
To date, we have handled more than 35,000 personal injury cases, with a 97% success rate and more than $1.2 billion in recoveries for our injured clients. So contact us today. You pay nothing for your case review.
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