Some say that surgeons are among the top medical professionals. Their ability to help their patients recover from various conditions and injuries is often truly amazing. However, they are not perfect. Surgical errors are more commonplace than many people realize.
Fortunately, the law provides a pathway for victims of surgical negligence to pursue compensation for their losses. It is in no way an automatic process. Victims are burdened by following procedures and proving medical negligence, which is not a simple proposition.
Anyone who has experienced an injury due to surgical error must find a skilled surgical error medical malpractice attorney to represent them. Fighting for the compensation an injury victim deserves requires extensive legal knowledge and practical skills.
Available Compensation for Surgical Errors
Victims of surgical errors deserve fair compensation when these errors rise to the level of negligence. If you have suffered similar treatment, you need to know what damages are available. A medical negligence attorney can detail your potential types of compensation during a free consultation.
In Florida, there are at least two types of damages your attorney will pursue in your case: economic and non-economic. A third type, punitive, is not usually awarded but may also be available to you, depending on the circumstances of your case.
Economic Damages
Economic damages are directly related to financial losses occasioned due to your injury, such as:
- Hospital and medical treatment and care
- Lost wages
- Home healthcare expenses
- End-of-life and burial expenses in cases of wrongful death
They are easy to calculate, for the most part, using account information, expense records, and work schedule information. However, insurance companies typically fight to reduce economic damages payments by contesting the seriousness of an injury or using some other tactic.
Non-Economic Damages
Non-economic damages are often more difficult to determine, even though they are just as valid as economic damages. The problem with calculating them is that they typically do not come with a built-in price tag.
For example, how much is pain and suffering (a common type of non-economic damage) worth? The answer to this question depends on the nature and extent of the injury suffered. Generally speaking, the more extensive the injury, the more pain and suffering damages a victim will be entitled to.
Other non-economic damages include:
- Emotional distress
- Loss of sexual function
- Loss of companionship
- Permanent disfigurement
- Scarring
- Loss of enjoyment of life
As you can see, non-economic damages deal with the more intimate parts of your life and address your ability to live life to the fullest.
When you meet with a medical malpractice attorney, you will want to explain to them how your life has been negatively altered by your surgical error injury so they can give you a complete list of the damages to which you may be entitled.
Punitive Damages
Surgical error cases do not always involve punitive damages. Since they do not compensate victims but punish those at fault, you need a lawyer who can prove punishable behavior.
Punishable behavior that can unlock punitive damages for a victim includes either intentional misconduct or gross negligence.
Gross negligence is conduct considered so reckless and wanting in care that it constitutes a conscious disregard or indifference for someone else’s life.
Unlike economic and non-economic damages, punitive damages are capped at either three times the amount of compensatory damages or $500,000, whichever figure is higher.
How a Medical Negligence Attorney Helps
The main job of a medical negligence attorney is to get their client as much compensation as possible for their injuries. However, accomplishing this requires the completion of a multitude of tasks and steps, beginning with obtaining a medical affidavit from an expert.
In Florida, the law requires medical malpractice victims to accompany their compensation claims with an affidavit completed by a qualified medical professional. The affidavit must clearly state that the expert believes that the victim’s case has merit and that it would be reasonable to say that a compensable error has occurred.
The main reason for requiring this step is to protect healthcare professionals and the courts from frivolous lawsuits. Unfortunately, there are many such meritless lawsuits. Weeding out unreasonable medical malpractice lawsuits allows those with actual, deserving claims to find recourse faster.
Proving Liability
Every claim for compensation that is successful has a clear outline of which professionals are liable. In the surgical context, various healthcare workers may be on the hook for negligent actions, depending on the case. In many instances, it is more than one.
Professionals who your surgical error attorney might identify as negligent include:
- Surgeons
- Nurses
- Anesthesiologists
- Laboratory techs
- Testing and monitoring techs
- Surgical centers and hospitals
Proving the negligence of any of these parties requires a surgical error attorney to demonstrate that the actions that caused their client’s injury fell below a clear, acceptable standard of care. They must also show that those actions directly resulted in the injuries detailed in the claim or lawsuit.
In order to accomplish this, a skilled surgical error attorney must have some knowledge of relevant medical and surgical procedures. But they must also seek and hire medical experts who can meticulously demonstrate why a particular action falls below a required standard of care.
Negotiating With Insurance Companies
An insurance company will likely handle your payout if you have been harmed by surgical negligence. However, they typically have an aversion to paying victims full value for their claims for reasons of profit. If an adjuster can pay less or nothing at all, then they save their company tons of money.
It is an unfortunate part of the process, but a seasoned medical negligence attorney knows how to engage in hardline negotiations for their clients and does not entertain lowball compensation offers.
Going to Trial
Not all surgical negligence cases can find a resolution during negotiations. When insurance companies refuse to negotiate in good faith, you need a surgical error attorney who is not afraid to take your case before a judge and jury.
No matter the facts surrounding your surgical error case, your first step after realizing the wrong should be to meet with a medical negligence attorney. Such an attorney will be your advocate and will fight hard to get you valuable funds to help address your injuries and associated costs.
Common Types of Surgical Errors
There are many ways in which a surgeon might be negligent. That said, the lion’s share of errors these professionals make fall into one of a handful of categories, all of which can lead to serious debilitation and compromised lives.
Failure to Diagnose During Surgery
During surgery, it is common for surgeons to identify dangerous conditions that they should communicate to their patients. Failure to do so is negligence if another surgeon would have reasonably discovered the error. Without knowledge of the condition, the patient may not seek treatment until it has caused irreparable harm.
Wrong-Site Operation
Wrong-site operations occur when a surgeon operates on the wrong body part. In some cases, wrong-site surgeries are fatal or result in doctors removing healthy body parts and members. Surgeons can permanently and needlessly alter patients’ lives due to the removal of a healthy limb, digit, or another body part.
Collateral Damage
Surgeons need exceptional skills to repair or extract body parts effectively. They must also have the skill and training to do so without damaging other body parts. Yet, it is not uncommon for collateral damage to occur during an operation.
However, some forms of collateral damage are part and parcel of the risk of a particular type of surgery, and doctors inform patients of such. Negligent collateral damage occurs when the damage should not have happened at all.
Left-Inside Errors
Left-inside errors encompass actions by surgeons and their teams that lead to foreign objects being sewn up inside a patient. Medical instruments and tools, such as scalpels and sponges, may be forgotten inside body cavities and cause serious problems.
It may also occur when a non-medical item, such as jewelry, finds its way into a patient’s body during an operation.
Anesthesia Errors
Anesthesia errors have devastating consequences.
They typically occur when:
- An improper dosage is used
- Improper monitoring of a patient occurs
- Delivery of the anesthesia is negligent
- Anesthetic sedation is prolonged more than it should have been
Improper Supervision
No surgeon works alone. They are part of a team of professionals who work in concert to help a patient. High-level supervision is required for the surgery to go off correctly. Sadly, the requisite supervision is sometimes lacking, and patients are injured.
Improper or Inadequate Training
Surgeons and their teams must be trained properly to handle each surgery they tackle. But sometimes, the task at hand is beyond the scope of a surgeon or a particular team member. Hence, you can expect your attorney to make doubly sure that each professional who treated you indeed had the requisite training and experience to do so.
Whatever the error, expect your surgical error attorney to work diligently to find it and identify the negligent parties. It is a meticulous process that requires the use of medical experts and draws heavily on the attorney’s knowledge. Hence, choosing a lawyer with a demonstrated track record of success in the medical arena is important.
Time Is of the Essence
If you have experienced an injury due to a surgical error that rises to the level of negligence, you must take timely legal action to get justice. There are numerous timing considerations surrounding every surgical error case that can potentially lead to the loss of compensation.
Statute of Limitations
Most importantly, a statute of limitations governs when you must file your lawsuit or claim. A statute of limitations is a legislative time limit that provides a deadline for a specific legal action. They control all forms of legal action, from criminal legal action to civil cases.
Regarding surgical errors and medical negligence, the statute of limitations provides that victims of these unlawful acts have two years in total from the date of the error to bring a lawsuit. After this period has passed, injured victims typically have no recourse unless they have not yet discovered the error.
The law does not start the statute of limitations clock until the victim knows or should know of the error. Hence, the legislature allows for the tolling of the statute of limitations until such occurs.
However, there is an overall four-year time period for most medical malpractice cases. For instance, if a patient finds out about a surgical error three years to the day after the surgery took place, they would not be entitled to the full two-year time limit and would only have one year left to take action.
The only cases that potentially get more time are medical malpractice claims involving minors and fraud.
Evidence Concerns and Timing
Although some forms of criminal evidence, such as DNA, can effectively be used after years and decades after an incident, the same cannot be said for most forms of evidence used for medical negligence.
In fact, once too much time has elapsed since the error occurred, certain types of evidence needed to prove a surgical error case can become either unreliable, unlocatable, or unusable.
Consider a surgical employee whose testimony would help establish a surgeon’s negligence. If a person harmed by surgical negligence waits too long to bring a lawsuit, this employee may no longer be available to testify due to leaving the state or the country or because they have gotten sick or passed away.
The bottom line is that patients who truly need valuable compensation to address the wrongs done to them must act quickly or potentially lose out on financial resources forever.
There is no excuse for surgical error or any type of medical negligence. If you or someone you care about has experienced either, seek help from a personal injury attorney. You may deserve substantial compensation for your losses.
Frequently Asked Questions
Is There a Statute of Limitations for Claims Based on Surgical Errors?
Yes. Florida has a statute of limitations that controls medical malpractice claims. Under normal circumstances, injury victims have two years from the surgery or the date of discovery of the error to file a lawsuit.
However, there is an overall time limit of four years from the date of the surgical error for suits, except in the case of minors eight years or younger named in lawsuits and cases of fraud.
Do I Need a Lawyer to Get a Proper Settlement?
Yes. All injury victims should know that insurance companies do not have their best interests in mind. The job of insurance adjusters is to offer you the smallest payout possible or to find a reason to deny your claim.
You need an experienced medical malpractice attorney to get you on a level playing field with the insurance company and the doctor or hospital, who have legal representation of their own.
Once you contract the services of an attorney, the insurance company and the defense will take your case more seriously because they know that a professional is looking after your interests.
Should I Speak to the Defendant’s Insurance Company?
No. Never speak to the defendant’s insurance company without your lawyer present. Its representatives will want to either deny your claim or get you to accept a small payout.
They may also try to use what you say to reduce the defendant’s liability. Sometimes, they accomplish this by getting you to admit a degree of fault in your injury. By doing so, they can reduce the amount of the settlement.
To truly protect your claim, you should allow a medical malpractice attorney to handle these communications.
How Much Can I Recover for My Medical Malpractice Injuries?
There is no way to determine your potential compensation without attending an initial consultation. The facts and circumstances of your case will dictate what you may be entitled to.
Another answer to this question would be that your case is worth as much as you accept from the insurance company. If an adjuster offers you a specific sum, and you take it, then that is how much you will recover.
However, if you don’t have an experienced attorney fighting for your interests, any amount you receive will likely be far below the payout you deserve.
How Much Does a Medical Malpractice Lawyer Cost?
Medical malpractice lawyers typically cost nothing upfront because they charge a contingency fee for their services based on the final settlement or verdict. In other words, your attorney does not get paid unless or until you do.
How Long Does It Take to Settle a Medical Malpractice Case?
Medical malpractice cases are complex and time-consuming. They require a significant amount of resources and rarely resolve in a short time.
Simply taking a case requires your attorney to hire experts to evaluate the facts to determine whether there is a reasonable likelihood that malpractice exists and that this malpractice caused your injury. This process adds significant time to the compensation process.
At your initial consultation with our office, we will discuss the merits of your case and explain these timing concerns as well as other pertinent matters that affect the length of malpractice cases. Generally speaking, however, it may take time to resolve your surgical error claim.