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Surgical Errors in Ontario: Everything you Need to Know

Surgical errors are something that occur more often than most consumers would believe.  One of the more common surgical errors that occurs is operating on the wrong body part (for example, if an injury occurred to the left arm, operating instead on the right).  In addition, sometimes surgical instruments are left inside patients when surgical procedures are performed (example, leaving a scalpel inside a patient). Another means in which a surgeon can make an error is failing to properly prepare for surgery with steps such as disinfecting instruments and creating a sterile environment.

Often there is also a chance that a surgeon commits a surgical error by doing damage to other organs or tissues while performing a surgery on another organ.  This is also often very difficult to detect.

There is no shortage of ways that surgical errors can occur in today’s medical practices. This also means that there are many patients who suffer injuries and sometimes even death at the hands of surgeons.  Thus, surgical errors are a serious matter.

In recent years, research has determined that roughly 1 in 18 patients in Canadian Hospitals are injured by preventable mistakes that occur within the hospital system.  One example of these types of preventable mistakes is those that occur in the context of surgical errors.

Discovering Surgical Errors

One of the difficult parts for patients who may be the victim of a surgical error is discovering that such an error occurred. Obviously, in cases where a surgeon simply operates on entirely the wrong body part, it is typically much easier to discover that an error occurred, but that isn’t always the case.  

In the majority of cases, the error does not present itself right away.  For example, if a surgeon commits an error by failing to remove a surgical instrument from a patient, that may not be known immediately until some other type of complication presents itself.

In addition, if a surgery was simply not completed properly, that also may not be immediately obvious to the patient.  Patients are typically informed of the risks of particular procedures prior to a surgery and thus, sometimes it is difficult to determine whether post-surgery complications are caused by an error or simply are part of the process.

What kinds of damages can patients suffer as a result of surgical errors?

Patients who are the victim of surgical injuries may suffer dire health consequences including death in the most severe cases.  It is not uncommon for surgical errors to lead to increased medical bills and additional medical treatment.

These more obvious issues aside, surgical injuries can lead to lifelong disabilities, loss of income and loss of enjoyment of life – issues that can be a bit trickier to put a price tag on as a whole.  

Other legal damages can also include the cost of physical therapy and other continuing treatments that occur as a result of the surgical error.  

Pain and suffering including emotional distress, and damages for the loss of relationships with spouses and others depending on the nature of the surgical errors and its effects can also be components of damage caused by surgical errors.

How are surgeons held liable for surgical errors?

Injured parties may be entitled to compensation for injuries suffered as a result of surgical errors if a surgeon is found to be negligent in performing the surgical procedures involved in a particular case.  Negligence is essentially the concept that a surgeon has a duty to exercise reasonable care in performing his or her duties and in some way breached that duty. If the failure to exercise reasonable care is the basis for damage that occurred to a patient, the surgeon may be held liable for damages on a negligence theory.

Typically, proving a legal claim in a case of a surgical error involves consultation with expert witnesses who can assist in proving that negligence occurred in a particular case.  Expert witnesses will need to see complete copies of the medical records involved to assess whether or not the surgeon in a particular case met the standard of care that is required for that type of surgery or medical procedure.

It is also important for injured parties to understand that it is also possible that sometimes even when everything is done properly and there is no proof of negligence, that it is possible that a patient may have a less than desirable outcome from a surgical procedure.  In other words, just because the patient is not happy with the outcome may not mean that there was an error or negligence on the part of the surgeon. Thus, not every surgical error is actionable.

Perhaps the most difficult part of any personal injury case, including those involving surgical errors is that there is no perfect way to 100 percent fix the injured party (or deceased party as the case may be). The only option available is compensation in the form of money.  This is not the same as being able to literally put someone back to the position they were in before the surgical error occurred, but it is all that the legal system can provide for.

What steps does an injured party need to take in the case of a surgical injury?

If you suspect that you are the victim of a surgical error, it is very important that you seek competent legal advice early in the process. There may be applicable notification time periods and other processes that must be completed in order to protect your legal rights.  Without competent legal help to navigate the process, it is very possible something will be missed.

In addition to seeking competent legal advice, a party injured by a surgical error will likely be referred for further medical evaluation to determine whether there is a means to correct the injury by further medical treatment or surgical procedures.

The legal process will likely begin with notification to the medical provider’s medical malpractice insurer to explore any insurance coverage that might assist with payment of the claim.

Eventually, the process may be continued in court by the filing of a lawsuit to pursue the claim in court.

Medical Malpractice cases such as those involving surgical errors are some of the more difficult legal claims out there today.  Thus, the reason that obtaining expert help to get these claims resolved is so important.

Seek legal help if you’ve been injured by a surgical error

If you have been injured as a result of a surgical error, it is very important to take action to protect your rights as soon as possible.  Contacting a competent lawyer who can evaluate your case and guide you through the process will help ensure that your rights are adequately protected and that your damages are properly addressed in the legal system.