Wednesday, May 9, 2018

Did You Need Surgery to Repair a Surgical Error?

It is an unfortunate fact that patients cannot always rely on medical providers to render adequate care. Especially during complicated surgical procedures, negligence can result in devastating injuries. These injuries can lead to amputation, paralysis, lifelong pain and suffering, or the need for further surgeries to undo the damage from the initial procedure. Surgical errors often entitle the victim to recover compensation for the financial losses he or she incurs as the result of the botched procedure. The experienced Clearwater medical malpractice attorneys at the Dolman Law Group can help victims both access compensation for their losses and hold negligent medical providers responsible for exposing innocent patients to dangerous medical care.

Common Types of Surgical Errors

The International Journal of Surgery reports some alarming statistics on the frequency of surgical errors. One Harvard study found that 47.7 percent of all "adverse events," meaning medical errors, were associated with a surgical operation. In Australia, the figure was 50.4 percent. More than half of these adverse events were determined to be preventable. The study also identified eight procedures that were found to be "high risk" for errors. These statistics were determined by the rates of preventable adverse events. These high-risk procedures included:

  • appendectomy
  • transurethral resection of the prostate or a bladder tumor
  • lower extremity bypass graft
  • coronary artery bypass graft/cardiac valve surgery 
  • colon resection
  • hysterectomy
  • cholecystectomy
  • abdominal aortic aneurysm repair

In addition to certain procedures carrying a greater risk of surgical complication, certain surgery sites have been found to have increased risks of surgical complications. Health Services Insights published a study that examined surgical complication rates in complex outpatient procedures performed in physician offices, ambulatory surgery centers, and hospital outpatient departments. The researchers used a private health insurance claims database to compare hospitalization rates after such procedures. They found that hospitalization rates were higher for procedures performed in a physician's office than for procedures performed at ambulatory surgery centers. The authors recommended further research into the safety of surgical procedures performed in a physician's office.

Patient Safety Net also raised questions about basic surgical error rates at outpatient surgical facilities. It reports that one study of data from the Veterans Affairs Department found that half of all surgical errors involving a wrong patient, wrong surgical site, or wrong procedure occurred outside of a hospital operating room. This, too, raises questions about the safety of surgical procedures performed in physician offices or ambulatory surgery centers. Surgical errors involving the wrong patient undergoing an operation, the wrong surgical procedure being performed, or surgeons operating on the wrong body part are among the most preventable of all surgical errors. Because of this, they almost always lead to the surgeon or medical facility being found negligent.

A Plaintiff’s Burden of Proof in a Florida Medical Malpractice Case

In order to prove that a doctor committed medical malpractice, a plaintiff must prove that the doctor violated the duty of care to the patient, and was therefore negligent. Section 766.102(1) of the Florida Statutes defines this as “the prevailing professional standard of care for that health care provider.” The prevailing professional standard of care for a given health care provider is defined as “that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.”

However, the Florida legislature has imposed additional procedural requirements that must be followed before a medical malpractice claim can be filed. Section 766.104 requires an attorney to certify that he or she has made a reasonable investigation and found grounds for a good faith belief that there was negligence in the patient's care or treatment. This certification must be included with any complaint about medical malpractice, and attorneys who falsely claim they have such grounds are subject to discipline by the state bar. Section 766.106 also requires plaintiffs to serve each prospective defendant (including doctors, surgeons, nursing staff, and medical facilities) with notice of the intent to file a medical malpractice lawsuit. The plaintiff must then wait 90 days before filing the lawsuit. During this time, each defendant (or their insurer) must conduct their own investigation of the claims to determine whether the defendant bears any legal responsibility. Each defendant must respond in writing to the plaintiff within 90 days. They can either:

  • Reject the claim entirely
  • Accept liability and make a settlement offer, or
  • Make an offer to arbitrate the value of the patient's claim. This is deemed an admission of liability, and the only question at issue is the losses the patient has incurred. These are his or her "legal damages."
These requirements serve a few different purposes. First, the investigation required before a lawsuit can be filed helps to prevent attorneys from filing frivolous medical malpractice claims that have no merit. Second, the 90-day waiting period requires the parties to seriously examine the claim and begin some settlement negotiations before a lawsuit is filed. This helps the case move more quickly once it reaches a court. Both of these actions help facilitate timely resolution of medical malpractice cases and clear crowded court case dockets. They do, however, mean that injury victims have additional procedures and requirements that must be met to file a claim for medical malpractice in a Florida court.

The Right Attorneys to Aggressively Pursue Your Medical Malpractice Claim

Under Florida law, victims of medical malpractice have important legal rights. The right attorney can help victims assert these rights and recover the compensation to which they are entitled. The Dolman Law Group has extensive experience protecting the rights of medical malpractice victims in and around the Clearwater area. Call us at (727) 451-6900 today to schedule your free consultation with an experienced, aggressive medical malpractice attorney. We fight hard to hold negligent doctors and medical facilities accountable for medical malpractice.

Dolman Law Group
800 North Belcher Road
Clearwater, FL 33765
(727) 451-6900

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