What Is the Difference Between a Failed Procedure and Medical Malpractice?

Surgery—no matter how simple or complex—isn’t a light matter. In any situation, you’re dealing with the possibility of something going wrong. In some cases, the medical team commits negligence or somehow deviates from the standards of care, resulting in harm. In other cases, the surgery did not work as intended, even though the medical team did everything correctly. How can you tell the difference between a failed procedure and medical malpractice?

It’s Important to Know What Medical Malpractice Is

Errors occur all the time. That would be no cause to assign blame, but in the event that medical malpractice is evident, the burden of proof relies on whether or not the incident adhered to the accepted medical standard of care leading to harm, damage or even death.

Standards of care define how qualified healthcare professional should perform a certain type of procedure. If the professional did not complete procedures according to the standard expectations that would be outlined and you were harmed by it as a result, that would be considered medical malpractice.

It’s important to understand the “and” in the statement. A surgeon can actually be negligent but cause no harm to a patient, and there would be no medical malpractice lawsuit. Both negligence and harm must be present in the suit.

So Then What Is a Failed Procedure or “Surgical Error”?

At its core, a surgical error is simply a mistake—a preventable mistake, however, but they do happen given the risks accompanied with surgery. This is often why patients who undergo surgery sign a form stating they understand the risks as surgical errors might occur. They’re often unexpected; and when they do happen, they’re unavoidable. However, if your doctor failed to warn you about the risks of the operation, the could be considered malpractice.

However, not all surgical errors are created equal. The courts must consider why the error occurred, and how much harm it caused. Some factors to consider when determining surgical error:

• The surgeon could have been incompetent
• The surgeon could have been unprepared
• Improper work processes can also cause errors
• Poor communication can also be a factor
• Perhaps the surgeon was extremely tired
• What about intoxication? (Drugs/alcohol)
• Or, simply put, just plain negligence (not being careful at all)

The trick is knowing whether or not the failed procedure resulted in medical malpractice, which can be tricky as there are a variety of levels in each of these reasons for surgical errors.

Sometimes too much or too little medication could be an error. Performing an incision in the wrong part of the body, operating on wrong patients or leaving instruments inside patients can constitute medical malpractice.

But You Won’t Know Unless You Consult an Attorney

The details matter. As all professionals are directly examined, consulted and questioned, an experienced lawyer would be able to tell the difference through experience that you may be dealing with a simple accident or full-blown negligence resulting in medical malpractice.