By As Law Online 
Bad medical outcomes happen all the time. Sometimes it’s just bad luck.
But sometimes it’s malpractice.
And unfortunately telling the difference between the two can mean the difference between walking away with nothing and receiving the compensation you deserve for your surgical errors.
The tricky part? Knowing which is which.
Here’s what every patient needs to know:
- What Is Medical Negligence (And What Isn’t)
- The 4 Elements Needed To Make It Legal Negligence
- Common Surgical Errors That Can Qualify as Negligence
- Surgical Mistakes That Likely Won’t Qualify
- How To Tell If You May Have a Valid Claim
What Is Medical Negligence (And What Isn’t?)
Bad outcomes in medicine are nothing new.
Millions happen every year, and they’re unfortunately often compounded by disbelief, confusion and self doubt from the families involved.
One study estimates over 250,000 fatal medical errors each year in the US alone. That’s the third leading cause of death. Yikes.
But here’s the thing most people don’t understand…
Just because something goes wrong, doesn’t mean it’s legal negligence.
For a medical error to meet the legal definition of negligence, two critical things must happen:
- A healthcare provider must breach the accepted standard of care when treating a patient.
- And that breach must cause measurable harm to that patient.
Without both of those things occurring, it’s not legal negligence. Even if the outcome was disastrous.
Think of it this way…
If a surgeon does something that another trained surgeon wouldn’t have done — and that mistake hurts you — then it might be negligence.
But if they made the exact same decision any other surgeon would have made in their position, it’s not negligence. The standard isn’t perfection. It’s whether or not they acted reasonably when compared to other professionals.
That’s where having a top Orange County medical malpractice lawyer on your side early can help. Sorting out whether a medical error is at the level of legal negligence — and what sort of surgical error compensation you might be entitled to — takes intimate knowledge of both medicine and the law to figure out.
The 4 Elements Needed To Make It Legal Negligence
For medical negligence to exist under the eyes of the law, there are four elements that must all be present. If you’re missing even one of the below, it’s not negligence.
Let’s take a look at what they are…
1. A Doctor-Patient Relationship Existed
A doctor must have agreed to treat the patient, forming an official doctor-patient relationship.
Typically this happens the moment they accept you as a patient and begin treatment. The duty of care begins at that point.
2. The Standard of Care Was Breached
This refers to whether or not the doctor violated the expected standard of care when treating their patient.
Essentially, this answers the question — would another doctor with similar training have done the same thing?
If they would not have, then that’s a breach of the standard of care.
3. That Breach Directly Caused Measurable Harm
If there’s no harm, there’s no claim.
For an incident to be considered medical negligence, it must cause actual damage. That damage can be physical, financial or both.
4. Damages Occurred
A breach of the standard of care must have also caused quantifiable damages.
Examples of what qualifies include:
- A resulting injury or worsened medical condition
- Additional or unnecessary medical bills as a direct result
- Lost wages/income
- Pain and suffering
Each of these criteria must be met. That’s the line separating an unfortunate complication from medical malpractice.
Common Surgical Errors That Can Qualify as Negligence
Surgeries are tricky.
There’s a lot that can go wrong despite a surgeon’s best efforts. Some things you’re simply more susceptible to based on your health conditions and the nature of the procedure itself.
About 25% of all medical malpractice claims are due to surgical errors. Here’s what qualifies:
Operating On The Wrong Body Part
Performing surgery on the wrong arm, leg, organ, eye etc.
Retaining Objects Inside Of Patients
Accidentally leaving medical tools, sponges or other foreign objects inside patients when concluding surgery.
Mistakes During Anesthesia
Giving a patient too much anesthesia. Or stopping too early. Not monitoring them correctly. Etc.
As you can imagine, this can cause serious and often irreversible damage to patients.
Failure To Identify Warning Signs
Surgical negligence can also happen after the procedure. If a doctor fails to catch obvious signs of bleeding or infection during recovery, they can be held liable.
Performing The Wrong Procedure
Wrongful procedures happen more often than most people would think. Sometimes a surgeon will simply operate on the wrong part of the body.
Other times, they perform the wrong procedure entirely.
Either way, it’s almost always negligence.
Surgical Mistakes That Likely Won’t Qualify
Knowing what doesn’t qualify is just as important as what does.
The reality is, not every surgical error is malpractice. Complications happen, even when surgeons do everything right.
Examples include:
- When the complication was a known risk clearly laid out on the consent form
- The bad result was due to an inherent risk with the surgery. But every protocol was followed correctly
- Anything outside of the surgeon’s control after leaving the facility
- When the patient’s own actions after the procedure contributed to the negative outcome
Basically, if a competent surgeon would have made the same decision, it’s not negligence. Even if the outcome was horrific.
Does that mean there are no legal options? Of course not. But it may not be malpractice.
How To Tell If You May Have a Valid Claim
Here’s a quick test…
Ask these questions:
- Was the medical team obviously thrown off by the outcome?
- Did they clearly deviate from common protocols?
- Did they have to have another doctor come fix their mistake?
- Were important details withheld before surgery?
- Did the severe complication occur immediately following surgery?
If the answer is yes to two or more of the above questions, there may be a legitimate claim for surgical error compensation.
Consider speaking to a legal professional.
About 1% of these types of incidents result in a malpractice lawsuit. That means millions of people with valid claims are never compensated.
The Simple Bottom Line
Medical errors are unfortunately not rare.
But they don’t automatically equal negligence.
Medical negligence requires that a healthcare professional violated a specific standard of care when treating a patient, and that violation causes actual harm to that patient.
When it comes to surgical errors, some of the most common negligence claims include wrong site surgery, retained surgical objects, anesthesia negligence and more.
4 Things To Remember:
- Nurses and doctors are human. Mistakes will happen. But they’re only negligent if certain criteria are met.
- Surgical errors account for roughly 25% of all medical malpractice claims in the United States.
- Faulty judgement that another nurse or doctor would have made does not typically qualify.
- An attorney can help identify negligence and determine whether a claim should be filed.