A poor surgical outcome does not automatically mean medical malpractice occurred. Surgery carries known risks and complications, even when doctors, nurses, and other medical professionals provide appropriate care.
A potential surgical malpractice claim generally turns on different questions: Did a health care provider depart from the accepted standard of care, and did that departure cause additional injury or make the patient’s condition worse?
For Maryland patients and families trying to understand what happened, the first step is often gathering the complete medical record and having the circumstances reviewed by qualified medical professionals. Experienced Maryland medical malpractice lawyers can help evaluate the surgical timeline, identify the providers involved, and determine whether further investigation is warranted.
Complication, Known Risk, Or Preventable Error?
Not every complication is preventable. Bleeding, infection, nerve injury, adverse reactions, and other problems can occur even when surgery is performed properly.
The legal question is generally not whether the patient experienced a bad result. Instead, a surgical malpractice case may depend on whether the care fell below the accepted standard and whether that failure caused harm beyond what the patient otherwise would have experienced.
Maryland law addresses the standard applicable to medical malpractice claims in CJP § 3-2A-02.
Informed consent is also important, but signing a consent form does not mean a patient agreed to negligent treatment. Consent to a recognized surgical risk is different from consent to care that falls below the applicable standard.
Errors During The Procedure
Some surgical events may raise immediate questions about whether an avoidable error occurred.
Examples can include:
- Surgery performed on the wrong patient
- Surgery on the wrong body part or site
- The wrong procedure being performed
- Injury to an organ, nerve, blood vessel, or other structure
- A sponge, instrument, or other object being left inside the patient
- Medication errors
- Anesthesia mistakes
- Problems involving surgical equipment
- Communication failures among members of the operating-room team
These events do not all have the same legal significance. A technical injury during surgery, for example, may be a recognized complication in one situation and evidence of improper technique in another.
That distinction often requires review of the operative record and the opinions of medical experts.
Failures Before Surgery
Problems can also arise before the first incision is made.
A surgical team may need to consider the patient’s medical history, current medications, allergies, laboratory testing, imaging, cardiovascular risks, and other conditions before proceeding. In some cases, an unexpected injury may raise questions about whether relevant test results were overlooked, a contraindication was missed, medication instructions were inadequate, or the surgical plan was not properly developed.
Preoperative planning can therefore be as important to an investigation as the operation itself.
Failures After Surgery
A patient may also suffer harm after leaving the operating room.
Postoperative care may involve monitoring for bleeding, infection, respiratory problems, changes in vital signs, medication reactions, and other complications. Depending on the procedure, medical providers may also need to recognize and respond to signs that the patient is deteriorating.
A complication after surgery does not automatically prove negligence. The issue may instead be whether warning signs were recognized and addressed appropriately, whether follow-up was timely, and whether discharge instructions were adequate.
Request The Complete Operative And Hospital Record
Medical records are central to understanding what occurred before, during, and after surgery.
Patients generally have rights to access medical records under federal health privacy rules. The U.S. Department of Health and Human Services explains those rights in its guidance on access to medical records under HIPAA.
For a surgical case, useful records may include:
- The operative report
- Anesthesia records
- Nursing flowsheets
- Medication administration records
- Surgical consent documents
- Preoperative assessments
- Laboratory and imaging results
- Pathology reports
- Device or implant information
- Postoperative progress notes
- Discharge instructions
- Follow-up records
The operative report is important, but it is only one part of the picture. Anesthesia documentation, nursing records, medication logs, imaging, and later treatment may reveal details that do not appear in the surgeon’s summary.
Patients should also consider preserving their own timeline of symptoms, conversations with providers, follow-up appointments, additional procedures, and changes in their ability to work or perform daily activities.
Qualified Experts Evaluate Standard Of Care And Causation
Medical malpractice cases usually require more than showing that something went wrong. The medical issues must often be evaluated by qualified professionals who can assess what an appropriate provider should have done under the circumstances.
That review generally addresses two separate questions.
First, did the provider depart from the applicable standard of care? Second, did that departure cause or contribute to the patient’s additional injury?
Causation can be particularly complicated in surgical cases because many patients already have serious medical conditions before an operation. A proper evaluation may need to separate harm caused by the underlying illness or injury from harm allegedly caused by a surgical error.
Maryland also has specific requirements involving qualified experts in malpractice actions. The state’s qualified-expert certificate requirements under CJP § 3-2A-04 are part of Maryland’s specialized medical malpractice process.
Identify Every Provider And Entity Involved
Surgery is usually a team effort, and the surgeon may not be the only person whose care requires review.
Depending on the facts, an investigation may examine the conduct of:
- The surgeon
- An anesthesiologist or nurse anesthetist
- Nurses
- Surgical assistants
- The hospital
- An outpatient surgery center
- Staffing or management entities
- Other specialists involved in the patient’s care
In some cases, a medical device may also be involved. If a product malfunction contributed to an injury, questions may arise about the manufacturer, distributor, or other entities responsible for the device.
Responsibility should not be assumed merely because a person or organization participated in the patient’s care. The medical records, employment relationships, contracts, and expert review help establish who was responsible for each aspect of treatment.
People dealing with broader injury-related issues can also learn more about Maryland personal injury representation.
Maryland Malpractice Claims Follow Specialized Procedures
Maryland medical malpractice cases do not always proceed in the same way as ordinary negligence claims.
The state has a specialized framework for health care malpractice disputes, including requirements involving the Health Care Alternative Dispute Resolution process and qualified-expert certification. These procedures can affect how and where a claim begins before a case proceeds through later stages.
Because surgical malpractice claims often involve substantial records and technical medical issues, early case preparation may include obtaining records, identifying appropriate experts, analyzing the sequence of care, and determining which providers or entities should be investigated.
Patients and families who want to learn more about the lawyers who handle these matters canlearn more about our SBWD attorneys or check out our legal resources and blog.
Timing Can Be Different In Foreign-Object And Minor Cases
Medical malpractice claims are subject to filing deadlines, but the timing analysis can become more complicated in certain circumstances.
Cases involving a retained surgical object, a minor patient, delayed discovery, death, or other unusual facts may involve different legal considerations than a routine malpractice claim. Because of those differences, patients should avoid assuming that one deadline applies to every surgical injury.
Prompt action can also matter for practical reasons. Medical records may be easier to obtain while treatment is ongoing, memories can fade, and additional procedures may change the medical picture.
If a surgical injury results in death, surviving family members may also need to consider issues associated with wrongful death claims.
Have SBWD Law Review What Happened In The Operating Room
When a surgery leads to an unexpected injury, patients often need more than the operative report to understand what happened. The complete record may reveal what occurred during preparation, anesthesia, the procedure itself, recovery, and follow-up care.
Schlachman, Belsky, Weiner & Davey, P.A. can review the surgical timeline, obtain and evaluate relevant records, identify the providers involved, and determine whether the circumstances support further investigation.
To discuss a possible surgical malpractice claim in Maryland, contact SBWD Law or call (410) 685-2022.
Surgical Error Frequently Asked Questions
Does Signing A Surgical Consent Form Prevent A Malpractice Claim?
No. A consent form generally documents that a patient agreed to a procedure and accepted certain disclosed risks.
That is different from consenting to negligent care. If a provider departed from the accepted standard of care and caused additional injury, the fact that the patient signed a consent form does not automatically prevent a malpractice claim.
Can I Request My Operative And Anesthesia Records?
Generally, yes. Federal patient-access rules give patients broad rights to obtain copies of their medical records, although timing, fees, format, and the scope of available records can vary.
In a surgical case, patients may want to request more than the operative report. Anesthesia records, nursing documentation, medication logs, imaging, pathology, and follow-up records can all be important.
What If A Sponge Or Instrument Was Left Inside Me?
A retained surgical object is a serious event that warrants prompt medical and legal review.
The operative report, imaging, later treatment, and records showing when and how the object was discovered may all become important. Retained-object cases may also raise different timing issues under Maryland law, so early review can be especially important.
