Does Your Client Have a Legitimate Surgical Medical Malpractice Claim?

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    Jun 27, 2014
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Does Your Client Have a Legitimate Surgical Medical Malpractice Claim? Photo by Jason Cutright

Every year there are about 52 million surgeries performed in the United States. Tens of thousands of these surgeries are performed unnecessarily due to several reasons. The average American that lives to be 85 years old will have 9.2 surgeries in their life time. The ability to accurately calculate an overall surgical medical malpractice rate is currently next to impossible due to a conglomerate of false and unreported claims.

Multiple factors must be examined and possibly further explored when reviewing a potential client’s surgical medical malpractice claim for merit. Some claims are blatantly obvious such as a wrong surgical site operation, the wrong procedure performed, wrong medication administered, major vessel or nerve damaged resulting in permanent injury or death, and foreign body left inside the patient in the form of a sponge or instrument. Other factors are not so obvious and further discovery relating to the decision making process of the surgeon and facility staff must be explored by way of preoperative tests, images, clinic medical records, and equipment documentation. Could the surgeon have order everything correctly but the hospital staff failed to properly execute?

Let’s start with the most important questions. Was this surgery performed for a life or death diagnosis or was this an elective surgery? This is a very important question for a couple of different reasons. Surgeries performed for life or death scenarios such as trauma, acute cardiac and vascular, and oncology, have the odds stacked against the patient from the start. With that being said there is not a good reason for failure in the majority of these instances. The surgeon in most of these situations is considered a Good Samaritan and without their expertise the patient would expire anyway.

The following questions need to be answered. In acute cases of trauma and cardiac / vascular emergencies did the hospital facilitate the emergency standard of care in a timely manner? Were the proper medications administered during the chaos of the trauma scenario? Was each hospital staff member involved in the patient’s clinical pathway properly trained? Does the facility have documentation of this training? Did the patient have complications after surviving the surgery? Can the facility produce sterility autoclave records for each instrument used during the patient’s surgery? Can the facility produce all lot numbers on all disposable sterile items used during the surgery? Were any of the items subject to a national recall that the facility ignored? Were expired sterile items used during the surgery? Did the patient have a new injury other than the one that is the cause for the surgery? What is the client’s main grievance?

It is important to research not only the decision algorithms relating to standards of care but also the allowable time for each step along the way. Can lag time be proven to be negligence? Can you prove that the facility is understaffed causing a backlog of emergency patients? Did the call team respond in a timely manner? Does the facility have updated equipment that is checked regularly by certified technicians? Just about every facility will fail in one of these questions. If you find resistance when you audit discovery on these items chances are you will find negligence.

In cases of elective or needed surgeries that have non-life threating diagnosis’s was the patient given all conservative modality options prior to recommending surgery? Where the clinical notes properly formatted and completed? Was the patient injured during the surgery? Were there perioperative complications? These are the surface questions to be answered however further examination must be performed. How many surgeries did the surgeon have that day? What is the allowable amount of surgeries per block day according to the standard of care? How many patients does the physician see in a typical clinic day? Elective surgeries are being performed in the office based and ambulatory outpatient settings at a higher percentage than in traditional statistics. Do these facilities have adequately trained staff? Are these facilities prepared for emergencies? Is the patient worse off after the procedure then before? Was the patient informed of all possible complications prior to the surgery? Again, what is the client’s main grievance?

Clients that seek legal counsel in the event of a perceived surgical medical malpractice claim are typically disappointed by the care they received for one reason or another. Did they have unrealistic expectations of the surgical outcome? Did they pay cash for the surgery and feel there was no benefit? Do they now have a physical impairment that has surfaced since the surgery?

In conclusion, playing the devil’s advocate and understanding the psychology of your potential client will assist you in procuring the true motive of the claim. Are the accusations minor or major? Simply examining the medical records might not be enough to find the negligence in question. A little bit of due diligence goes along way. With a bit of research you will be able to determine if your client has a claim worthy of pursuing.

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Cutright Legal Consulting is a firm devoted to providing consultation to Medical Malpractice and Personal Injury attorneys. Specifically, in the cases of surgical malpractice and personal injury spine claims causing life altering or life ending dispositions.

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