Surgical Errors: Did Medical Malpractice Occur?

Washington Medical Malpractice Lawyer Mike Maxwell

Video Transcript:

Mike Maxwell: 

Surgical errors can injure you worse than just about anything.

Rob Rosenthal: 

So how do you know if your surgical complication is actually because of medical malpractice, and where do you turn for help? That's what we're gonna find out right now on this episode of Ask the Lawyer. My guest is Washington state attorney Mike Maxwell. I wanna remind you right at the beginning, if you wanna ask Mike questions about your situation, it's easy, go to askthelawyers.com, click the button at the top that says Ask a lawyer. It doesn't cost you anything to ask your questions or you can simply call the phone number you'll see on the screen during our conversation. Mike, it's good to see again, thank you for making some time to help us out.

Mike Maxwell: 

Good morning, Rob. Good morning.

Rob Rosenthal: 

So let's talk a little bit, first of all about your experience handling medical malpractice cases. Is this something you've done quite a bit of in your career?

Mike Maxwell: 

Most of my practice in the last 10, 15 years is medical malpractice.

Rob Rosenthal: 

And so what are some of the more common types of surgical errors you see that can be attributed to medical malpractice?

Mike Maxwell: 

Well, we have a saying that, "Nobody can injure you as badly as a doctor can injure you." And surgical errors are the worst kind, if the doctor's operating on your brain, slip of the knife, and you have a horrible bleed in your brain can cause you to be badly brain injured. If a doctor is operating in your abdomen and slips a knife and cuts your colon, and suddenly your entire inner cavity gets filled with fecal contamination and you get a horrible septic infection, that's an awful situation. So surgical errors can injure you worse than just about anything.

Rob Rosenthal: 

It would seem like those two examples you just gave, Mike, those are noticeable right away, but could there sometimes be things that may take a while to know, "Uh oh, there was something went wrong."

Mike Maxwell: 

Oftentimes, it is a delayed onset because there's a slow leak, a slow drip, a slow bleed, a slow infection, and so sometimes the slip of the knife cases or surgical error cases, it's really in the post-operative care when the nurses or the doctor fails to notice the signs of the bleed or the infection.

Rob Rosenthal: 

Well, medical sciences of science is not an exact science. Tell me about a bad outcome, or did some people call a bad outcome, and is that always a medical malpractice?

Mike Maxwell: 

It's absolutely not always a medical malpractice case. Rob, there's really two ways to look at these surgical error cases, and I'll tell you how a good attorney can help make a case. One is, jurors are always going to forgive a doctor for a mistake or an error that happens during surgery, and they'll forgive the doctor for the same way that they forgive the firefighter who's responding to a fire and makes a bad decision. They understand that the surgeon is under a lot of stress, working on time constraints and that mistakes happen. So I have taken a case of a surgical error to trial and I was badly beaten because jurors are simply willing to forgive this kind of an error. But the way that you can successfully prosecute such a case, if you are a medical malpractice attorney, is in the post-operative care. In an operative situation, an attorney, excuse me, a doctor, is under a lot of pressure and under time constraints, but in the post-operative setting, there is no time constraints and there's no pressure, and if doctors are failing to notice the signs of redness, swelling, pain, infection, and they fail to act on it, sometimes a small problem can become a disastrous over 24, 48, 72 hours, and if the doctors fail to pay attention to that... And I can give you an example or two of that. From my own practice, if they fail to pay attention to that, the patient can have disastrous consequences and that can be a successful case.

Rob Rosenthal: 

And who determines the standard of care for surgeons, Mike, is that lawyers that do that? How's that handled?

Mike Maxwell: 

In Washington state, as elsewhere, the standard is to follow the accepted standard of care, so in other words, doctors set the standards, lawyers enforce them. So the accepted standard of care, if you have post-surgical pain and redness and swelling is to investigate, maybe you reopen the wound, maybe you look for... Maybe you take a swab, maybe you send it to the lab, you're looking for the signs of infection, and if a doctor just sends the patient home and says, "Don't worry about it, take two aspirin and call me in the morning", and ignores the signs that an infection is developing or post-operative hematoma, which is a swelling of the blood vessels, and then those things happen and disastrous consequences strike, then the doctor has failed to follow the accepted standard of care.

Rob Rosenthal: 

And it would seem to me, Mike, that the difficulty for you, for an attorney is figuring out which cases are actually going to qualify for a medical malpractice, which ones or how that figures into that standard of care, is that difficult choosing which cases you can be successful with?

Mike Maxwell: 

It is very difficult, and to be honest, Rob, we turn most of those cases down because sometimes disastrous consequences happen when doctors do everything right, so separating the cases where disastrous consequences occur from good medicine versus those which occur from bad medicine. That's a painstaking process. It means reviewing the medical records carefully. It means interviewing the patient and friends and family, and it means consulting with experts who can figure out what really happened and where the error lies, if there's an error.

Rob Rosenthal: 

I imagine those cases can also be very expensive to handle.

Mike Maxwell: 

No attorney should take on a medical malpractice case, unless that attorney has got enough of... Enough resources, financial resources to go the distance. Doctors don't like to be sued. They've got very good malpractice insurance. They're defended by excellent attorneys, and they have unlimited resources to defend these cases. So no attorney should take on a medical malpractice case of any sort lightly.

Rob Rosenthal: 

But at the same time, Mike, does the person who might have been the victim of the medical malpractice, they don't need to be concerned about, "Oh, I have to come out. This is too expensive for me to even pursue." They don't need to be concerned about coming up with that money, right?

Mike Maxwell: 

If the case has merit, meaning it's a very good case, the doctor made an error which can be identified, it can cost 10, 20, 50, 100 thousand dollars to bring the case all the way to verdict. If you're looking for a good lawyer, that lawyer will have enough money to fuel the case, like fueling an airplane all the way to the landing, fueling the case all the way to verdict. So the answer is, the injured person shouldn't worry about having to front the money to bring the case all the way to verdict, if the injured person has found a very good lawyer.

Rob Rosenthal: 

Some people, Mike, "Oh, will say the medical malpractice cases, they harm doctors, they harm hospitals, they harm the quality of care rather than helping." What's your response to that?

Mike Maxwell: 

Medical malpractice cases are good for the medical profession because doctors do not do a good job of policing themselves. When there's a bad doctor, an inattentive doctor who's more concerned about going golfing or doing whatever, not paying attention to the patients, most doctors would just rather do their job rather than police bad doctors. So I told doctors who don't want to testify against a fellow doctor, "If you don't, who will? The legal profession is there to make sure that the medical profession can weed out the negligent, the alcoholic, the drunk, the drug-addicted, the doctors that are just not paying attention to what's going on. If we trust our care with these doctors, there has to be a way to make sure that the doctors are attentive to our needs and that's the legal system.

Rob Rosenthal: 

Can you give me an example of a medical malpractice case, maybe a surgical error case that you've worked on?

Mike Maxwell: 

Yes, there was a case that I worked on... Well, there's one case where there was a doctor who nicked a woman's blood vessel during a routine gynaecological examination, and the doctor did everything right. He brought it to a surgeon, the surgeon repaired it and the woman was left with an ugly scar. I took that case to verdict and the jury forgave the doctor. It was just an error. Another case that I had was a woman who underwent a spinal cord stimulation implantation surgery. I mean the doctor put these electrical leads inside her spinal canal, and in doing that, he nicked a blood vessel, that happens. It's not really the doctor's fault. It just can happen. But this woman was in excruciating pain way beyond what you would expect to find after the surgery, so the hospital kept her in the hospital for 24 hours instead of sending her home. And over the next 24 hours she lost all sensation in her legs, and then she lost all function in her legs, and she was paralyzed from about her ribs down. When the doctor came to the hospital the next morning, he saw that she was in complete paralysis, and he said to his nurses, "Why did you not call me?" It turns out that the nurses had called the doctor several times in the middle of the night, and they requested the doctor permission to up her pain medications because of her pain complaints.

Mike Maxwell: 

They also registered that she was losing all function in her arms, excuse me, all function in her legs, but they forgot to tell the doctor. So she was becoming paralyzed in front of the nurse's eyes, but they never have told him. So there was a 24-hour window and the doctor could have come in, he could have removed the hematoma, which is a blood clot that was pressing up against her spinal cord, but he lost the opportunity because the nurses never told him. So we brought that case to trial and after three weeks of trial, the doctor's insurance company... This was a federal case by the way. The federal government settled for many, many millions of dollars.

Rob Rosenthal: 

Wow, lots of really interesting, good information, Mike, as always, whenever we talk, thank you for making some time to answer our questions.

Mike Maxwell: 

Thank you, thank you.

Rob Rosenthal:

That takes care of this episode of Ask the Lawyer, my guest has been Washington State Attorney, Mike Maxwell. Don't forget, if you'd like to contact Mike with questions of your own, just go to askthelawyers.com. There's a button at the top that says Ask a Lawyer, click on that, and it will walk you through the very simple process. Thanks for watching. I'm Rob Rosenthal for Ask the Lawyers.

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