Determining Liability In Surgical Malpractice

Surgical malpractice occurs when your surgeon breaches the required standard of care expected of him. A hospital can also be liable for surgical malpractice if it does not have proper hygiene procedures or if it otherwise falls short of the standard of care that a hospital is required to provide.

How Liability for Surgical Malpractice is Determined

Surgical malpractice is simply a special form of malpractice that applies to a surgeon. As such, proving surgical malpractice is similar to proving any other type of malpractice. You must prove:

That your surgeon was negligent - Your surgeon's behavior and actions will be compared to what a reasonable surgeon would have done. If your doctor's behavior is viewed as less careful than the behavior a reasonable doctor would have exhibited, then your surgeon can be held liable for surgical malpractice.

That the negligence actually led to injuries - If you weren't hurt, even if your doctor was negligent, you cannot monetary damages, since you haven't suffered a compensable injury. If you were hurt, however, you can recover for medical bills, lost wages, pain and suffering and emotional distress resulting from those injuries.

That the doctor's negligence was the proximate cause of those injuries - This means that the negligence on the part of the surgeon must have been the direct or actual cause of the injuries. If the injuries would have happened, even with a careful doctor, you may not be able to recover your damages.

Proving Liability

If you can prove each of the three above factors, then your surgeon can be held liable for surgical malpractice. Often, proving these things comes down to expert witnesses. Since the jury will determine whether the doctor's behavior was reasonable or not, a frame of reference must be given to the jury to show what a reasonable doctor would have done.

You can present evidence in the form of other expert physicians who can explain why the doctor was unreasonably careless. You can also provide medical evidence and any other related information that leads the jury to believe the doctor was negligent. Some cases are easy- such as when a doctor left a surgical instrument inside of a patient or operated on the wrong part of the body- but other cases can be more difficult and fact intensive, making it harder to prove liability.

Getting Help

If you want to hold your doctor liable for surgical malpractice, you should consult with an experienced medical malpractice attorney. Your attorney can help you collect the evidence you need to prove the doctor was negligent and can help you build a case to the jury so you can recover your damages.

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